ROACH, MacKAY and MORDEN JJ.A.
19th MARCH 1958.
Gifts — Donatio mortis causa — Contemplation of death — Apprehension as to air travel.
The deceased was apprehensive of air travel and immediately before going on a journey by aeroplane he gave the defendant the keys of his car and the vehicle permit endorsed in blank. The deceased survived the journey but died from coronary thrombosis shortly after reaching his destination. The trial Judge had held that the circumstances under which possession of the car was delivered to the defendant were sufficient to support a donation mortis causa.
Held, on appeal, that the transfer of possession of the vehicle was not made in contemplation of death. The risks involved in air travel are “no more than the ordinary risks that affect mankind in his ordinary and natural movements and pursuits.”
AN APPEAL by the defendant from the judgment of Barlow J. reported at  O.W.N. 23. 5th February 1958. The appeal was heard by ROACH, MACKAY and MORDEN JJ.A. 19th March 1958. The judgment of the Court was delivered by W.J. Hemmerick, for the plaintiff: A gift mortis causa has always been considered and defined as a gift in the nature of a legacy which is effected by the death of the donor. This class of gift has been described by the early authorities as being where a man lies in extremity, or being surprised with a sickness, and not having an opportunity of making his will, but lest he should die before he could make it, gives his goods with his own hands to his friends about him: Hedges v. Hedges (1708), Pr. Ch. 269; Tate v. Hilbert (1793), 2 Ves. 111 at 1187; Ward v. Turner (1752), 2 Ves. Sen. 431; and Staniland v. Willott (1850), 3 Mac & G. 664. Contemplation of death has in these cases and in succeeding cases been strictly construed by the Courts. Here the deceased expressed a dislike of travelling in the air. [ROACH J.A.: What you are saying is that the deceased had an apprehension of travelling in the air, that is to say that while so travelling he might be killed and therefore, he transferred the motor-car to the defendant.
However, you say that when the journey by air was safely completed, the danger apprehended by the deceased terminated and then the deceased died from a heart condition and you submit that these latter facts take this case out of the scope of the law of gifts mortis causa.] The other submission is that the deceased did not contemplate death in accordance with the principles as laid down by the cases. The deceased had enjoyed normal health for a period of 12 years prior to his death and there had been no hint at any time that he was liable to die as a result of a heart attack and therefore, the usual foundation for a donatio mortis causa is ruled out completely. [MORDEN J.A.: There are other reasons to contemplate death besides bad health or illness.] Such as impending peril, but such impending peril must be of a kind that can reasonably be contemplated. [ROACH, J.A.: Suppose the peril to the deceased is a real peril and to everyone else is a fantasy? The deceased purported to transfer his property. Is such a transfer not sufficient to create a donatio mortis causa?] If that proposition is sound, it leads to some unusual law, that is to say, people could by token delivery and a statement that they are frightened of death from some cause, sometime in the future, create a donatio mortis causa. Such types of donations do not fulfil the requirements set out in the cases. In this case here is an apprehension and dislike of air travel, but no terror of death, plus a delivery of an automobile. [MORDEN J.A.: Would not evidence of delivery be strong enough? Let us assume the deceased did contemplate death by air travel and that he did die of thrombosis, do you say that that excludes the rule?] Yes. [MORDEN J.A.: You say that that excludes the rule?] Yes. [MORDEN J.A.: You say that if the contemplation is unreasonable, then the rule does not apply.] Yes: Tate v. Hilbert, supra; Hedges v. Hedges, supra. It is submitted that the words used throughout these cases are words of extremity. To establish a gift mortis causa, three conditions must be satisfied. The conditions are that the gift must be made in contemplation of the approach of death from existing disease or other impending peril, but not necessarily expectation of immediate death: Staniland v. Willott, supra. In this case, the learned Judge uses the phrase “peril of death” and goes on to say that from the evidence and contemplation of the deceased that he was about to die, he could find a donatio mortis causa: Wilkes v. Allington,  2 Ch. 104 at 110 and In Re Reid (1920), 50 O.L.R 595, 64 D.L.R. 598. Secondly, the gift must be made under circumstances which show that it is to take effect only in the event of the donor’s death from his then existing disorder: McDonald v. McDonald (1903), 33 S.C.R. 145, at 161, 23 C.L.T. 135. [MACKAY J.A.: That surely cannot be right. ROACH J.A.: My recollection is that a donatio mortis causa is a present gift subject to be revoked. You say I am wrong in that? MORDEN J.A.: Have you cases saying that you cannot have a donatio mortis causa where the deceased contemplated cause A and died of cause B?] Ward v. Bradley (1901), 1 O.L.R. 118, at 125. Thirdly, there must be delivery of the subject of the gift to the donee for his own use or upon trust for another person or for a particular purpose: In Re Reid, supra, at 605. These three conditions must all be satisfied for a donatio mortis causa to be successful. It is further submitted that a sound policy requires that the laws regulating gifts mortis causa should not be extended or enlarged. With regard to the phrase “contemplation of death” such contemplation must be a reasonable thing, not just a passing thought. [ROACH J.A.:
Was it not reasonable for the deceased man to be apprehensive that there might be a calamity while he was in the air? Is that what you were saying?] No, taking the transaction as a whole, the transaction itself must be reasonable. [MACKAY J.A.: Unquestionably the deceased did purport to make a gift and if the cause for making the gift was reasonable, surely the making of the gift was reasonable also.] To follow that line of reasoning opens up a danger of fraud. The cases say that the gifts must be made in a last illness or an impending peril.
Both such phrases confine the making of a gift to a very small area. [ROACH J.A.: Suppose I agree, who is to be the judge of whether to the deceased, it was an impending calamity?] It must be for the Court to say whether a reasonable man, having such a fear would make such a donation. It is submitted that in this case, there is no evidence to show that the deceased was terrified of air travel, that is to say that he was sufficiently disturbed by it to fulfil the requirements of the phrase “contemplation of death” as set out in the cases. K.G.R. Gywnne-Timothy, for the defendant: A donatio mortis causa has certain essential characteristics which distinguish it from any other type of gift; it must be made in contemplation of death; there must be delivery and the circumstances must show that the gift was to revert to the donor if he did not die: Cain v. Moon,  2 Q.B. 283 at 286; Brown v. Rotenberg,  O.R. 363 at 368 and at 370. In the case of Wilkes v. Allington, supra; Tomlin J. followed Cain v. Moon, supra; Eppler v. Szczepkowski,  O.R. 540,  4 D.L.R. 104; Kendrick v. The Dominion Bank and Bownas (1920), 48 O.L.R. 539, 58 D.L.R. 309. The deceased had more than one possible reason to contemplate death prior to his air trips, and particularly the last trip, his general health condition, his dislike of and fear of air travel, or the interaction of one upon the other. A valid donatio mortis causa may be effected where the deceased’s death results from a cause other than that contemplated by the deceased at the time of the making of the donation: Wilkes v. Allington, supra, and Rosenberg v. Public Trustee (1945), 12 I.L.R. 34 (Ont.). It is further submitted that in considering donatio mortis causa, the words “contemplation of death” are to be given their ordinary meaning; see vol. 1, Shorter Oxford Dictionary at page 380, and Funk and Wagnalls’ Dictionary, page 567; Cain v. Moon, supra, and Eppeler v. Szczepkowski, supra. It is further submitted that if a more restricted meaning of the phrase “contemplation of death” is accepted, air travel falls within this phrase as is shown by the frequently expressed feeling stated by the deceased, that air travel was dangerous and by the fact that at all major airports, air travel insurance is made easily available to the general public which indicates that such fear of the deceased was a reasonable one. Cur. adv. vult.
ROACH J.A.:– The plaintiff is the administratrix of the estate of her deceased husband and brought this action to recover possession of an automobile, alleging the same to be owned by the estate, and for damages for the wrongful detention of it. The defendant alleged that the deceased had given the automobile to her either as a gift inter vivos or as a donatio mortis causa. The learned trial Judge held, quite properly on the evidence, that there had not been a valid gift inter vivos but he held, — improperly in my respectful opinion, — that there had been a valid donatio mortis causa and he dismissed the action with costs.
The plaintiff and her husband had been living apart for about ten years but during those years he had been supporting her. At least in the later years of his life he had been on intimate and very friendly terms with the defendant; they worked for the same employer, and from time to time he allowed her to have possession of his automobile. On the majority of those occasions he merely gave her the keys of the car but on three of them he gave her not only the keys but also the motor vehicle permit, on the back of which he endorsed the ownership transfer form in blank under circumstances and with declarations by him, from which it was argued that he had on each of those occasions effected a donatio mortis causa.
The first of those occasions was in July 1955 immediately prior to the deceased leaving for England on a business trip for his employer. On the insistence of his employer he made that trip by air travel to save time. There is considerable evidence that the deceased was frightened of air travel and regarded it as perilous. On that occasion when giving the keys and the permit to the defendant he said in substance, that if anything should happen to him and he did not return, the
motor car was to be hers. He did return safely and she gave the car and the keys and the permit back to him.
The second occasion was in April 1956 when he was again sent by his employer on a business trip to Montreal. On that occasion he also travelled by aeroplane. The defendant stated in evidence that on that occasion when the deceased gave her the keys and the motor vehicle permit endorsed in blank, she did not remember him saying “anything in particular” to her and I rather gather from the evidence that she assumed, perhaps with some justification, that his intentions on that occasion were the same as on the occasion of his trip to England, namely that if anything should happen to him and he did not return, the car was to be hers.
The third and final occasion was on 11th June 1956. On that occasion the deceased was about to leave for Winnipeg by aeroplane on another business trip for his employer. He and the defendant drove in his car to the Royal York Hotel in Toronto where he was to board a limousine for the airport. AsAt to what occurred there I quote from the evidence of the defendant:–
On examination in chief:–
Q. And then what happened? A. Well, when we got down there he just gave me the keys and told me to take over and handed me the license and got out and said he would let me know when he was coming back.
Q. Miss Mechan, am I correct in assuming from your statement that Mr. Thompson drove you down to the Royal York? A. Yes.
Q. Then he got out of the car and handed you the keys? A. Yes.
Q. And did he hand you anything else? A. And the motor vehicle license.
Q. Did he say anything at that time that you can recall Miss Mechan? A. No, I’m sorry, I can’t. On Cross-examination:–
Q. Well what did he say? A. Well among other things in a conversation, he kept saying that he just didn’t feel like making this trip; he just wasn’t feeling well.
Q. Did he give any reason for saying he didn’t feel like making the trip? A. No, I took it it was because he had a dislike of air travel and when he wasn’t very well that just made it more intense. it it was because he had a dislike of air travel and when he wasn’t very well that just made it more intense.
Q. I see. I gather that you talked about the transfer of the permit and he handed you the permit and the keys etc., and had he returned would you have given that car back to him? A. Yes.
Q. That was more or less the agreement between you? A. Oh, yes, it was his car unless he didn’t come back.
Q. The same as on the other occasions? A. Yes.
There is other independent evidence proving the deceased’s apprehension about flying and that he contemplated that his death might ensue as a result of his flights and that he intended the defendant in that event to become the owner of the car.
The deceased arrived in Winnipeg without mishap and went about his business there. Sometime between 12th June and 15th June — the record does not disclose the exact date — he was suddenly stricken by a coronary thrombosis and he died in the hospital in Winnipeg on 15th June. The certificate of his death states, — and it is agreed, — that the cause of death was “coronary thrombosis — arterio sclerosis.”
There is no evidence that the deceased contemplated his death from any physical disability but only as the result or in the course of flying which to him was perilous.
There is nothing in the evidence that even suggests, let alone proves, that, on 11th June 1956, — or indeed on either of the earlier two occasions, viz. July 1955 or April 1956, the deceased made his trip without having had the opportunity of making a will. Assuming for a moment that a commercial air flight is an event so perilous as to support a donatio mortis causa the deceased had not suddenly been placed inextremis. He was going about his business in the usual normal manner. I find it impossible to conclude that he thought his death would ensue in the course of his approaching flight. If he really thought that it would, I should think he would have declined to fly even at the risk of losing his job. Assuming that he was willing to run the risk of death in the interest of his employer he was still not in a position where he could make an effective donatio mortis causa. In Hedges v. Hedges (1708), Pr. Ch. 269, Cowper C. describes the environment necessary to a valid donatio mortis causa thus:–
… where a man lies in extremity, or being surprised with sickness, and not having an opportunity of making his will; but lest he should die before he could make it, he gives with his own hands his goods to his friends about him: this, if he dies shall operate as a legacy; but if he recovers, then does the property revert to him.
Moreover, if he was suddenly placed in the position where he was obligated and willing to make the flight without any opportunity of making a will he was still not in extremis because there was no existing or impending peril that the law recognizes as sufficient to support a donatio mortis causa. In this modern day commercial travel by air does not constitute such a peril. Further, if it could be held, which I think it cannot, that travel by aeroplane is sufficiently perilous to support a valid donatio mortis causa, the peril had ceased to exist once the deceased arrived safely in Winnipeg. It could have recurred had the deceased lived and entered upon his return flight to Toronto but at the time of his death he was in no different position so far as the intended donatio was concerned than if he had not left Toronto at all. To put it otherwise, the deceased did not die either from or while within the alleged peril.
In the oft-quoted case of Cain v. Moon,  2 Q.B.D. 283, Lord Russell of Killowen C.J. reiterated the three things that must combine for an effectual donatio mortis causa:–
… first, the gift or donation must have been made in contemplation, though not necessarily in expectation, of death; secondly, there must have been delivery to the donee of the subject- matter of the gift; and, thirdly, the gift must be made under such circumstances as shew that the thing is to revert to the donor in case he should recover.
The first essential will not be satisfied by a vague and general impression that death may occur from one of these ordinary risks that attend all human affairs. Among those risks are risks in travel whether by motor car, railway, ship or aeroplane. The risks incident to travel by air are not sufficiently great to classify that mode of travel as being particularly perilous; it was otherwise in the very early days of the aeroplane but as this Court per Robertson C.J.O. said in Malone v.
Trans-Canada Airlines,  3 D.L.R. 369, 54 C.R.T.C. 331,  O.R. 453 at p. 458:–
Travel by aeroplane must now be regarded as a common means of transport, extensively used, not only throughout North America, but in many other parts of the world. With experienced and careful pilots and proper equipment, a passenger has the right to expect that he will be carried safely to his destination.
Even since those words were written aeronautical science has increased the factor of safety. If the principle could be extended to gifts made in contemplation of death by accident in the course of travel then it would be logical to extend it to gifts made in contemplation of death by accident in the factory in the case of a factory worker, in a mine in the case of a miner, on a ranch in the case of a rancher or indeed in almost every field of human endeavour that one can think of. The husband, on leaving his wife in the morning to drive to his work could make a valid donatio mortis causa to his wife by saying to her that the traffic will be heavy and the road conditions bad and at the same time giving her his bank book and saying “if anything happens to me the money in the bank is to be yours.” Risks in some of these areas are greater than in others and accidents resulting in death occur in all of them but they are the exception, not the rule.
The application of the principle could not be justified in the instant case on the footing that, although air travel is not gravely perilous the deceased thought that it was. Conceding that he considered it so perilous that he felt that in all probability he would be killed and that it would be miraculous if he were not, — a state of mind that I cannot convince myself he had, — that apprehension would still not support a donatio mortis causa.
The doctrine of donatio mortis causa was derived by English equity from Roman law. In English law, a donatio mortis causa is only valid when made in contemplation of death from a cause that is proximate, either an existing or immediately impending peril, placing the donor in extremis. A person cannot be said to be in extremis from a cause that exists only in his fancy or imagination and where in fact, he is exposed to no more than the ordinary risks that affect mankind in ordinary and natural movements and pursuits. The risks attendant upon air travel come within that class.
I said earlier that even if air travel constituted a peril sufficient to support a donatio mortis causa, the intended gift in the case at bar would fail as such, because the deceased did not die either from the peril or while within it.
There are two lines of authorities; the one holding that for the title to the personalty to become vested in the donee the donor must die from the disorder existing at the date of the gift, the other holding that the title will vest even though the donor should not die from the very malady or peril from which death was apprehended, but should die from some other cause while that malady or peril continued to exist. I do no more than mention these authorities. In that first class are the following cases: McDonald v. McDonald (1903), 33 S.C.R. 145, 23 C.L.T. 135 and Ward v. Bradley (1901), 1 O.L.R. 118. In the other class of cases are the following: In re Richards,  1 Ch. D. 513; Wilkes v. Allington,  2 Ch. D. 104. Whichever line of cases is to be followed the donor’s death comes within neither.
Reference was made during the course of the argument to Rosenberger v. Public Trustee (1945), 12 I.L.R. 34. That was what is sometimes described as a “hard” case and hard cases often make bad law. I think this one did. In that case the deceased was a member of the Canadian Army and on what would appear to have been his last leave in Canada, he gave the plaintiff the keys of his car and told her to sell it if she needed money quickly and insofar as certain policies of insurance were concerned and which were at the same time given to the plaintiff by the deceased, he said in substance, that if anything happened to him she should collect the insurance for the benefit of herself and her children. The deceased never left Canada and within a few days after he made the gift he died as the result of a railway accident. Kelly J. held it was a donatio mortis causa. With much respect I think it was not because the deceased never came within the peril that motivated the gift. As far back as 1827 in Duffield v. Elwes and Others (1827), 1 Bli. (N.S.) 497, the Earl of Eldon at p. 533 said this:–
Improvements in the law, or some things that have been considered improvements, have been lately proposed; and if, among those things called improvements, this donatio mortis causa was struck out of our law courts altogether, it would be quite as well; but that not being so, we must examine into the subject of it. Since then it has more than once been said that the application of the principles should not be extended.
We do not know where the automobile is now or who has it. It may not even be in existence.
It has been agreed between the parties that the value of the automobile at the date of the deceased’s death was $2,000.
I would allow the appeal with costs and direct that judgment be entered in favour of the plaintiff at her election, either for:–
(a) Possession of the automobile;
Damages for its retention with a reference to the Master to determine those damages;
The costs of the reference to be disposed of by the Master; or, in the alternative
The sum of $2,000. damages.
The appellant should have her costs of the action. Appeal allowed.
Solicitors for the plaintiff: Enfield, Kimberley, Hemmerick & Henry, Toronto. Solicitors for the defendant: Salter, Reilly & Jamieson, Toronto.
[Argument reported by G.W. BRIGDEN, Barrister-at-law.]