Deathbed gift of house — Keys to box containing title deeds — Whether delivery of subject-matter of gift — Whether land capable of passing by donationes mortis causa — Appeal by grantee allowed
The late Mr Vivian Hewett (“the deceased”) died intestate in 1986; his estate included a substantial dwelling-house. The appellant, Mrs Sen, was a friend and three days before his death the deceased told her that the house was hers and that he had put the keys to a deed-box containing the title deeds in her handbag. Mummery J held ([1990] Ch 728) that: (1) the gift of the house was in contemplation of death; (2) the gift was made upon the condition that it was to be absolute and perfected only on the deceased’s death; but (3) there had not been delivery of the subject-matter of the gift or the essential indicia of title. Mrs Sen appealed.
Held The appeal was allowed.
The deceased parted with dominium over the title deeds by constructive delivery. Further, the deceased parted with dominium over the house; the parting of dominium over the essential indicia of title was sufficient. The doctrine of donationes mortis causa does apply to a gift of land; the doctrine raises by operation of law a trust and there was no statutory obstacle to the transmission of an interest of land under the doctrine: see section 53(2) of the Law of Property Act 1925.
David Hodge (instructed by Steven Fidler & Co) appeared for the appellant; and Ian Leeming QC and Nigel Thomas (instructed by Edwin Coe) appeared for the respondent.
