Dexheimer v. Gautier

By the court, Robertson, Ch. J. The only defense which the answer in. this case sets up is, that the intestate (Jacob Dexheimer), of whose estate the plaintiff is administrator, gave the sum sued for to the defendant, in case of the death of the former at any time, without reference to any specific imminent peril. The defendant’s counsel offered on the trial to prove that the. gift was one “ mortis causa,” and made “about the time the intestate went to the war,” and that he was “killed in the war” without having revoked it. Thereupon, it being admitted that the money claimed was delivered to the defendant by the intestate, when he enlisted in the army, and was part of his bounty money, the court refused to receive such facts in evidence, and held that the facts stated in the answer did not constitute any defense, and directed a verdict for the plaintiff. To which refusal, decision and direction, exceptions were duly taken by the defendant. Such a gift as that alleged in the answer was clearly either an absolute one, or void. Death by any casualty, at any time, did not render it a “donatio mortis causa,” because it. was inevitable. No case is to be found of a donatio mortis causa, unless by some imminent peril, and when that has passed away, the giver has a right to revoke it. It is immaterial whether such a gift be a conditional one, dependent upon the escape of the donor from impending peril, or a revocable one, dependent upon his death thereby, without any revocation, or whether the peril be confined to sickness, or may include the dangers of traveling, navigation or battle. [475] (Just. Inst. Lib. 2, 7; 2 Kent’s Com. 444; Dayton on Sur. 3d ed. 262, 263.) The evidence subsequently introduced by way of admission did not establish a gift at all. The answer, therefore, .either did not contain a defense, or was unproved, and the direction to find a verdict for plaintiff was proper. .The judgment and order denying a new trial should be affirmed, with costs, Garvin, J., concurred.