A person having disponed to his brother, the whole sums and goods he should have at his death, if he survive him, and the disponer have no children of his own; this was found not revocable, as a donatio mortis causa.
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Grant having no children, dispones “the whole sums and goods he should have at his death, to his brother, if he survives him, and the disponer have no children of his own.” Thereafter he gives a disposition to his wife in the same terms, who craved preference, because the first disposition was donatio mortis causa, and so was ambulatory as a legacy, whereby the last disposition is preferable, at least it is but a tailzie for succession. It was answered, That the mention of death does not make a donation mortis causa, but when it appears that the donation is upon account of the imminency of death; but this disposition is inter vivos, though the effect is delayed to the disponer's death; it is true it did not restrain the disponer to transmit the property of his sums or goods, at any time of his life, the disposition not bearing to all sums and goods he then had, or should acquire till his death, but only dispones such sums and goods as then he should happen to have at his death; but the said disposition implying, and expressing a warrant from his own deed, he could not evacuate the same by a disposition to his wife in the same terms; and though the wife had first obtained possession, yet her husband being creditor by the prior disposition and clause of warrandice, he could not, without a cause onerous, dispone the same to any other, to take effect after his death.
The Lords found the first disposition preferable, as being inter vivos, and not mortis causa; but seeing the effect of it was not till his death, whereby communion of goods betwixt man and wife is dissolved, and the goods divided, they found it could not extend to the wife's half of the sums or moveable goods. See Husband and Wife.
