The right of action in revocation by reason of ingratitude, was personal, and of those which have a vindictive character, (vindictam spirantes); and not having properly the character of action of patrimonial right') did not pass to the heirs of the donor, and could not be exercised against the heirs of the donee, unless indeed, it had been already, commenced against the donee by the donor himself, during his life 2).

A renunciation a priori of the right of revoking a donation for the motives above cited, would appear to have been void, as contrary to good morals. L. 27. § 4. D. de pact. (2. 14). "Expedit enim timere furti vel injuriarum poenam." L. 1. § 7. D. Dep. (16. 3). L. 23. D. de R. J.). On the contrary the mother

very strong ground that the donee, until the revocation, was owner of the thing and entitled to its produce. The real question can be only whether the restitution of fruits should, in this special case, be regarded as equitable; and I should answer this question in the negative, because, so long as the revocation has not taken place, the donee has had possession not only by a legal title, but by the wish and with the full consent of the donor. The French and Dutch legislators (Code Nap. 958, and Neth. Code 1728), ordain restitution of products (fruits) only from the date of the demand; and this is, in every way, preferable to the Prussian and Austrian systems, which consider the donee as a possessor in bad faith from the moment of the act of ingratitude. Vide, for Prussian Law, Part I, Tit. 11, § 1167, Koch. ad h. 1.; and for the Austrian Code, § 949, Unger 98, note 19. Both consider this rigour as contrary to the nature of things.

1) L. 7 et L. 10. C. 1. "Hoc tamen usque ad primas personas tantummodo stare censemus, nulla licentia concedenda donatoris successoribus huiusmodi queremoniarum primordium instituere." The provisions of modern law are more severe. See art. 957 Code Nap., art. 1729 Code Neth.; Part I, Tit. 11. § 1157-1160. Pr. L. R.; et § 949 Cod. Autr.

2) I. The simple manifestation of dissatisfaction on the part of the donor did not suffice to convey his right of revocation to his heir; and this Schilling justly maintains, against Savigny. II. Did the right of revocation pass to the heirs, when it was founded upon the non-execution of charges? The point is doubtful; because Justinian classes such non-execution with acts of ingratitude. I think, nevertheless, with Saviguy t. c. p. 934, and with Doneau, that it should be answered affirmatively, In fact it was only to ingratitude, strictly so called, that the following phrase would seem to have been applicable: "si ipse qui hoc passus est tacuerit, silentium ejus maneat semper." (L. 10. C. I.); and besides, the revocation for non-execution of charges is not an action quae vindictam continet, but far more a veritable action of patrimonial right.

lost her right of revocation, if she led an excessively immoral life; (Portentosae vilitatis abjectaeque pudicitiae); and she retained it for but three causes in case of remarriage. L. 7. C. de rev. don. Nov. 22. C. 35. Auth. quod mater. C. eod.

§ 72. OF THE GIFT OF AN ENTIRE PATRIMONY OR ESTATE,

OR OF A PORTION OF AN ESTATE.

A donation might have for its object, not only certain property, or certain specified rights, forming a part of an estate or patrimony; but also the entire estate, or any portion of it 1); no matter whether certain things, or certain rights, were or were not reserved, or there were or were not charges laid upon the donee. L. 35. § 5. C. cit. L. 37. § 3. D. de leg. III. (32). L. 22. C. de don. (8. 54) 2). Such a donation, even when it embraced the entire estate, did not create a successio per universitatem 3). It is for this reason, that: I. All the goods, property and rights which were conveyed, were required to be separately transferred and bestowed. L. 6. C. de her. vend. (4. 39). L. 3. pr. D. pro soc. (17. 2). II. That the donor did not cease to be responsible for the engagements previously contracted by him, and that his creditors could sue him only, with no recourse whatever against the donee, who was not successor juris; saving, always, the right, in case of fraud by the donor, to sustain the actio Pauliana 4), against even the donee

1) L. 35. § 4. de don. "Sed etsi quis universitatis faciat donationem sive bessis, sive dimidiae partis suae substantiae, sive tertiae, sive quartae, sive quantaecumque, vel totius.” 2) "Cum res filio emancipato ea conditione ut creditoribus tuis solveret, te donasse proponas."

3) Vide ante p. 119.

4) Fraud was presumed when the donor alienated his entire estate, knowing that he had debts. L. 17. D. quae in fraud. cred. (42. 8). "Lucius Titius, cum haberet creditores, libertis suis iisdemque filiis naturalibus universas res suas tradidit. Respondit : quamvis non proponatur consilium fraudandi habuisse, tamen qui creditores habere se scit, et universa

in good faith, "qui de lucro certat." L. 72. D. de jur. dot. (23. 3). L. 6. § 11. D. quae in fraud. cred. (42. 8). The same principles were applicable when the donor did not give his own proper estate, but only the title to an inheritance, the right to which had already vested in him, by the death of the predecessor. In that case, he retained his character of heir and his obligations as debtor; and no direct relation was formed (by the donation) between his creditors and the donee 1). L. 28. D. de don. L. 2. C. de her. vel act. vend. (4. 39). L. 2. C. de pact. (2. 3). The gift of an inheritance which had not already accrued

the predecessor or testator being still alive, if made without the consent of the latter 2), was forbidden under pain of confis. cation. L. 30. C. 1. "Hujusmodi pactiones odiosae esse videntur, et plenae tristissimi et periculosi eventus." L. 29. § 2. D. de don. L. 2. § 3. D. de his quae ut indign. (34. 9).

There is dispute as to the question whether a future property could form the subject of a gift, as well as property in possession; but the solution seems to be affirmative 3). In fact, as such a donation did not create a successio per universitatem, there is no reason why a universal successor should not take his place beside the donee, even though there were nothing left to the latter praeterquam inane nomen heredis 4). Moreover, such a

bona sua alienavit, intelligendus est fraudandorum creditorum consilium habuisse, ideoque, etsi filii ejus ignoraverunt hanc mentem patris sui fuisse, hac actione tenentur." If there had been no agreement between the donor and the donee relative to the payment of the debts, it was presumed that the donee had assumed them as his own, in virtue of the adage: "bona non intelliguntur nisi deducto aere alieno." L. 72. pr. D. de jur. dot. Sav. Syst. IV, § 159. 1) It is the same in Dutch law, by analogy of arts. 1574, 1575, Civ. Code, and Austrian and Prussian law enact otherwise. Pruss.

arts. 1697, 1698, Code Napoleon. L. R. Part. I. Tit. 11. § 463 et

the provisions of which are criticised

derived from the ancient Dutch practice, as it is reported by Voet, ad Tit. Pand. de hered. vend. § 6]. Aust. Code, §§ 1278, 1282, by Unger, II, § 97, note 24. I. § 64, note 11.

2) By modern law the gift of an inheritance not yet accrued is not permitted, even with the consent of the testator or a predecessor. Pruss. L. R. Part. I, Tit. 11, § 445, 446 Aust. Code § 879, No. 4. Code Nap. art. 1130, and Code Civ. Neth. art. 1370. 3) See, against Savigny, Puchta, Vorles. § 71.

4) L. 119. D. de V. S. (50. 16). “Hereditatis appellatio sine dubio continet etiam dam

donation could be made only in the form of a promise or of an obligation; and no one be can forbidden to exhaust, indirectly, all his estate, by contracting towards others all sorts of obligations.

§ 73. OF CERTAIN SPECIAL KINDS OF GIFTS.

The following are of a special character:

I. Mixed gifts; that is those which are combined with a legal act upon an onerous condition. (mixtum negotium cum donatione 1). A mixed act of this sort was considered a gift as to a part, and for the rest as a separate act; provided, of course, that the nature of the thing did not render such a division impossible 2), and that the intention of the parties permitted the amount of the gift to be calculated. It is important to distinguish between this species of mixed or impure gift, and one to which the parties had falsely given the name or appearance of a different declaration of volition. This latter case was governed by the rule which regulated simulated acts in general. In other words, the principles which affected gifts were alone applicable. L. 5. § 5. L. 32. § 24, § 26. L. 31. § 4, § 5. D. de

nosam hereditatem. Juris enim nomen est sicut bonorum possessio❞ L. 50. D. de her. pet. (5. 3). "Hereditas etiam sine ullo corpore juris intellectum habet." The Austrian Code, § 944, limits such a promise of donation to the half of the property. By the French and Dutch laws, all gift of future property is prohibited. Code Nap. art. 943. Code Civ. Neth. Art. 1704.

or

:

1) L. 18. pr. D. de don. “Aristo ait, cum mixtum sit negotium cum donatione, obligationem non contrahi eo casu quo donatio est." For example: when, for the purpose of bestowing a gift, one bought a thing at more, or sold it for less than its value: when the agent charged himself with the expenses of executing the order of his principal : or when the borrower of a sum of money engaged to repay a sum greater or less than the true ore; or when a purchaser agreed that he would not, in the event of being deprived of the property by legal process (evictio), compel the seller to make good the loss. (evictionem praestaret). Sav Syst. IV. § 154.

2) L. 5. § 2. D. de don i. v. et ux. "Quod si aliarum extrinsecus rerum personarumve causa commixta sit: si separari non potest nec donationem impediri. Si separari possit, cetera valere, id quod donatum sit, non valere."

don. i. v. et ux. (24. 1). L. 12. pr. et § 1. D. Mand. (17. 1). L. 11. § 1. D. de R. C. (12. 1). L. 5. § 2. D. pro soc. (17. 2). L. 36. § 1. D. de min. (4. 4). L. 36. 38. D. de contr. emt. (18. 1). L. 20. § 1. L. 46. D. loc. (19. 2) 1).

II. Remunerative gifts; (donationes remuneratoriae); that is those which were made in recompense of benefits or services which the donor neither was, nor believed himself, legally bound to remunerate. They were independent of the reality of the motives which prompted them 2), and differed from other gifts neither in respect of formalities or restrictions, nor as to their effects 3). However, although no renumeration may have been stipulated or

1) Sec art. 2390, Neth. Project 1820. "Are also considered as gifts, all alienations which, either from the insufficiency of the consideration, or because the alleged price of sale or exchange has not been paid, are evidently simulated, for the purpose of fraudulently evading the requirements of law."

2) L. 52. L. 65. § 2. D. de cond. indeb. (12. 6). Erxleben (Die Cond. sine causa, p. 58), admits the donor to prove that without this erroneous supposition be would not have made the gift; arg. L. 72. § 6. D. de cond. et dem.

This opinion is formed in the Glossary ad L. 72. 1, and it is also approved by Unger. (II, § 99, note 7.) I cannot, however, concur in it. The proof required to be furnished by the donor, that he has been influenced by no other private motive, is inpossible; and we should be forced to content ourselves with probabilitios, which would deprive the gift of all stability. Moreover, a disposition so exceptional as that which takes into account, in the matter of a legacy, the ratio legandi, is not susceptible of being extended, by analogy, to other matters, even were there absolute purity of motive. The Austrian Code, § § 572. 901, authorizes the revocation of gifts, even for error in the motives. Moreover, in the Roman Law it was indifferent whether the error of motive related to the past or to the future. L. 3. § 7. D. de cond. c. d. c. n. s. (12. 4) L. 7. C. de cond. ob caus. dat. (4. 6).

3) Hence, they were required to be intimated (or "insinuated") when they exceeded the legal renumeration. They were prohibited between husband and wife, and were revocable by reason of ingratitude. See. Sav. Syst. IV. § 153, who shows this point with great clearness; Unger, § 99. Keller, § 71. By the Code Nap. even remunerative gifts are revocable, as of right, upon the subsequent birth of children to the donor (art. 960); and they are also revocable in the same way and for the same causes as other gifts. (Marcadé upon art. 959). Neither does Dutch legislation make any distinction respecting them. (art. 1725, Code Civ.) The Prussian law requires formalities, but does not permit revocation. (P, I, Tit. 11, § § 1169, 1170, and Koch, ad h. 1.) The Austrian Code, § 940, contains the following, eminently practical provision: "Nothing is changed in the