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DONATIO PROPTER NUPTIAS. .
missum in the absence of these conditions.' No person could make a donatio mortis causa, who could not make a testament. The death of the donee before the death of the donor was ipso jure a revocation of the donatio. It would appear as if the law about such donations was not free from difficulty. They were finally assimilated to legacies by Justinian, though this had been done in some particulars before his time, Still they differed in some respects from legacies ; for instance, such a donation could take effect though there was no person to take the hereditas, A filius familias might with his father's consent make a donatio mortis causa of his Peculium Profectitium.
The English law of donationes mortis causa is first stated by Braston (ii. c. 26) in the very words of the Digest (39. tit 6.. s. 2, &c^) ; and the pre sent law is expounded by Lord Hardwicke (Ward v. Turner, 2 Vez. 431) ; but what he there states to be the English law is not exactly the law as stated in Bracton... Tke rules of donationes mortis causa in English law are now pretty well fixed by various recent decisions. Tradition or delivery is considered one essential of such a gift, and the death of the donos in the life of the donee is another essential. The gift is not an absolute gift, but a gift made in contemplation of death, and it is revocable. (Big. 39. tit. 6 ; Cod. 8. tit. 57 ; Inst.. 2. tit. 7 ; Savigny. System, &c. iv. 276 ; Zeitschrift fur Gesch. Rechtswisset^schaft^-s.ii. p. 400, Ueber L. Seia:y 42. pr..; Q,e mox. ca. don.; Thibaut, System,. £c. § 495, &c. 9th ed.) [G. L.]
DONATIO PROPTER NUPTIAS. The meaning of this term is explained in the Institution es (2. tit. 7., § 3). It was originally called Donatio. ante nuptias, because it could not take place after the marriage ; but. when it was made legal to increase the donatio after marriage,, and even to constitute it altogether after marriage, the more comprehensive term donatio propter,- nuptias was used. If a d.os had, been given by the wife, or on the part of the wife*, and the husband by the teruis- of the contract was entitled to it, or to a part of it. in case of the- wife's death, it was necessary tbat the husband, oir s©me person on the part of the husband, should give or secure something to the wife- which she should have in the event of the husband's death :: this was a donatio propter miptias. Justinian's legislation required that the donatia miast be equal to what was secured to the husband in case of the wife's death,, and that it must be increased if the das was increased during the marriage. Tfete husband had the management of the property given as donatio. Such part of it as consisted of things immoveable he could not alienate or pledge even with the consent of his wife, unless she ratified her consent after two years. If the husband became impoverished during the marriage, the wife was entitled to the profits of the clonatio for her support ; and it was not liable to the demands of the creditors. If the marriage was dissolved by the death of the wife, the hus-"band was entitled to the donatio ; unless some third person, who had made the donatio, was entitled to have it by the terms of the agreement. If the husband died, the event had happened with reference to which the donatio. was made ; the wife had the ususfructus of the donatio, and the pron perty of it belonged to the children of the marriage if there were any: if there were no children, the wife obtained by the death of the husband full
power of disposition over the property included in the donatio.
The opinions of modern jurists are much divided as to the notions, purpose, and law of the donatio propter nuptias. The term donatio propter nuptias is used by Bracton (ii. c. 39) ; and the law, as there stated, is apparently formed upon a Roman original.
(Cod. 5. tit. 3 ; Nov. 22. c. 20; 97. c. 1, 2 ; 98. c. 1, 2; Mackeldey, Lelivbuch, &c. §528, 12th ed.; Thibaut, System, &c. § 742, 9th ed. ; Orto lan, Explication Historique des Institute, &c., vol. i. p. 479.) [G. L.J
DONATIONES INTER VIRUM ET UXO'REM. During marriage neither husband nor wife could, as a general rule, make a gift of anything to one another. The reason for this rule was said to be the preservation of the marriage relation in its purity, as an agreement subsisting by affection, and not maintained by purchase or by gift from one party to the other. Donationes of this kind were, however, valid when there were certain considerations, as mortis causa, divortii causa, servi manumittendi gratia. By certain im perial constitutions, a woman could make gifts to her husband in order to. qualify him for certain honours. This was a gift " ad processus viri" (Dig. 24. tit. 1. s. 41 ; Juv. Sat. i. 39 ; and the note of Heinrich,). The wife had the means of doing this, because when there was- no eonventio in manum (Gains,, if, 98), a wife retained all her rights of property which she did not surrender on her marriage [Dos],, and she might during the marriage hold property quite distinct from her husband.. It was a consequence of this rule as to gifts between husband and wife, that every legal form by which the gift was affected to be transferred, as mancipatio, cessio, and traditio, conveyed no ownership ; stipulationes were not binding, and acceptilationes were no release.. A difficulty might remain, as to usucapion ; but the law provided for this also. If a woman received from a. third per son the property of her husband, and; neither the third person nor she nor her husband, knew that it was the' husband's, property.,, she- might acquire the ownership by usucapion. If; both the-giver and the husband knew at the time of the gift that it was the husband's property,, and. the wife did not know, it mjghib alfeg, heeome- Her property by usucapion ; buft n.ofcif ;sh'e knew, for in that casS the bona fides wh&lkwas essential to the commence ment of possession^ was wanting. Ifa. before the ownership was acquire^b^.iisu.capion, the husband and wife discovered that it-was the husband's, though the husband didi not. choose to claim it, there was no usucapion ;, for this would have been a mere evasion of the law.. If, before the.owner ship was acquired by usucapipn, the. wife, alone discovered that it was the husband's property, this would not destroy her right to, acquire the pro perty by usucapion. This, at least, is Savigny's ingenious explanation of the passage in Digest 24. tit. 1. s. 44. The strictness, of the law as to these donations was relaxed in thatfianeof ^eptiinius Severus, and they were made valjicl if the donor died first, and did not revoke his gift before eleath. There were also some exceptions as \o the, general rule, (Dig. 24. tit. 1 ; Cod. 5, tit I(> ; Savigny, Zetyselmft, &c. i. p. 270 ; Mac^eldey, £ehrbucht &c. §5.31, 12th ed.) "" [G. L.]
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