PERIL OF DEATH

2 definitions found across Law Mind sources

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PERIL OF DEATHAuthored
The Law Mind • 1109 words
Definition
Peril of death refers to a condition of genuine, apprehended imminence of death that a person must be under in order to make a valid gift causa mortis — a gift made in contemplation and expectation of imminent death. The term is a term of art within the law of donatio causa mortis, describing the threshold state of mind and circumstance required of the donor at the time the gift is made. The concept has two interlocking dimensions: (1) an objective component — the donor must face a real, present danger or illness that could proximately cause death; and (2) a subjective component — the donor must actually apprehend that death is near. A gift made in mere abstract awareness that all people eventually die does not satisfy the peril of death requirement. The peril must be specific, identifiable, and operating at or near the time of the gift. If the donor survives the peril, recovers, or the anticipated cause of death does not materialize, the gift causa mortis is revoked by operation of law. This automatic revocation distinguishes gifts causa mortis from ordinary inter vivos gifts and from testamentary transfers.
Common Language
Modern common usage (Wiktionary): No standard Wiktionary entry exists for "peril of death" as a discrete term. In ordinary English, "peril" means serious and immediate danger, and "peril of death" would be understood colloquially as a life-threatening situation. Historical common usage (Webster's 1913): Webster's defines "peril" as "danger; risk; hazard; jeopardy; exposure of person or property to injury, loss, or destruction." The gap between common and legal usage here is one of precision and legal consequence, not reversal. In ordinary speech, "peril of death" is simply a dramatic phrase for mortal danger. In the law of gifts causa mortis, it is a defined threshold condition with doctrinal consequences: gifts made outside of it are void as donatio causa mortis (though they may qualify as inter vivos gifts if other elements are met). The degree and imminence of apprehension required is a legal question that common usage does not resolve.
Core Elements
Because peril of death functions as a threshold element of gift causa mortis, its components warrant structured treatment: 1. Real and present peril. The danger must be actual and proximate, not speculative or remote. A person in good health who fears eventual death does not satisfy this element. 2. Apprehension by the donor. The donor must subjectively believe death to be imminent or likely from the identified cause. Courts have struggled with whether apprehension alone, without objective peril, is sufficient — the weight of authority requires both. 3. Causal connection between peril and gift. The gift must be made because of and in contemplation of the particular peril. A gift made during illness but unconnected to any apprehension of dying from that illness may fail. 4. Survival operates as revocation. If the donor survives the peril, the gift is automatically revoked. No further act of revocation is required.
Why It Matters in Research
This term appears almost exclusively in the context of donatio causa mortis and is rarely litigated as a standalone concept outside that framework. Researchers encountering it in historical sources should understand that courts across the nineteenth and early twentieth centuries applied the standard inconsistently, with some requiring medical evidence of objective mortal danger and others crediting the donor's sincere subjective apprehension. The Bouvier's entry itself — citing the Delaware Chancery opinion in Robson v. Robson's Adm., 3 Del. Ch. 51 — acknowledges this doctrinal instability directly, noting "a great lack of precision of definition" in the case law. This is an honest flag from a usually confident source, and researchers should treat historical cases on this point as reflecting a genuinely unsettled standard rather than a fixed rule. Corpus researchers should also note that the phrase "peril of death" appears in older English ecclesiastical law in a distinct context: canon law required that persons in periculo mortis (peril of death) could receive certain sacraments or make certain declarations outside the ordinary formal requirements. This ecclesiastical usage bleeds into early American equity cases and can cause confusion when reading older chancery opinions that invoke the phrase without specifying whether they mean the donatio causa mortis standard or a broader equitable or religious context. Finally, researchers working on estate disputes involving deathbed transfers should track peril of death alongside the related but distinct requirement of delivery, which is separately required for gift causa mortis to be valid. Cases that fail on peril of death analysis often alternatively fail on delivery, and courts sometimes conflate the two inquiries.
Historical Dictionary Support
Bouvier's Law Dictionary is the primary shelf source that treats this term directly. Bouvier's is candid that the case law is imprecise, framing the definition as the product of "a critical examination of the authorities" rather than settled rule — an unusual concession for a dictionary entry, and one that accurately reflects the historical record. No competing entry appears in Black's or Burrill's for this specific phrase as a standalone term; those dictionaries treat the concept under donatio causa mortis or gift causa mortis without isolating peril of death as a separate definitional unit. Bouvier's decision to give it its own entry reflects a more granular analytical approach consistent with his chancery-influenced method. The partial quotation in the source material — truncated before the full statement from Robson v. Robson's Adm. — suggests Bouvier was relying on a detailed judicial synthesis of conflicting authority. Researchers should consult the Robson opinion directly if the precise historical standard is at issue.
Jurisdictional Note
The elements of gift causa mortis, including peril of death, are governed by state common law and vary at the margins. Most American jurisdictions follow the general common law framework, but some states have modified donatio causa mortis by statute or have been more or less demanding about the objective component of peril. Researchers should not assume that a nineteenth-century Delaware Chancery standard maps directly onto modern doctrine in any given state.
Related Terms
Gift causa mortis (donatio causa mortis) — the parent doctrine; peril of death is one required element Inter vivos gift — the alternative classification when causa mortis requirements are not met Contemplation of death — closely related subjective element; sometimes used interchangeably with peril of deathbut technically distinct Delivery — the other primary element of gift causa mortis; frequently litigated alongside peril of death Testamentary transfer — the formal alternative to deathbed gifts; subject to Statute of Wills requirements Revocation — automatic legal consequence when the donor survives the peril
PERIL OF DEATHmain
Bouvier's Law Dictionary • 1928
A term used to denote that condition of apprehension of death in which it is necessary that the donor should be, in order to make a valid gift causa mortis. In the cases on this subject there is found a great lack of precision of defini- tion. The result of a critical examination of the authorities is thus stated by Bates, Ch., in Robson v. Robson's Adm., 3 Del. Ch. 51, 63: "I have labored to obtain from the authorities a clear view of what is im- plied in these terms, peril of death, in other words, what is that precise condition of disability in consideration of which it is that the law gives effect to a gift causa mortis. Thus much is certain, that the gift, to be valid, in the first instance must be made under apprehension of death, as likely to result from some present peril, usually that of sickness. It is further cer- tain that to render the gift finally ef- fectual death must in fact ensue from the sickness or other peril under which it was made. But on another question I am un- able to derive from the text books and de- cisions any settled conclusion: That ques- tion is, whether the apprehension of death must be an apprehension of death as pres- ently imminent, the donor being, as it is said, in extremis; or, whether it is suf- ficient for the validity of the gift if death be contemplated as the probable re- sult of the sickness, a result likely or even certain to occur but after an in- definite interval, it may be of weeks or months; as in the case of chronic diseases generally." After adverting to the dif- ference of view to be found in the leading English cases, the chancellor continues: "The question is uncontrolled by any de- cisions known to me in our own courts; and as between the English cases I confess a strong preference for the narrower con- struction of these terms 'peril of death,' the one which seems to have been at first held. It is consistent with the original object of admitting these gifts into the English law; it guards the policy of the statute of wills; and prevents frauds and uncertainties of title." This view of the proper construction of the phrase "peril of death," was founded upon the theory that gifts causa mortis were testamentary in their nature. But Gibson, C. J., in Nicholas v. Adams, 2 Whart. 17, held to the contrary, "that these gifts are not testamentary, but, as he describes them, are gifts executed in the first instance by delivery of the thing, though defeasible by reclamation, the contingency of survivor- ship or deliverance from the peril." By way of comment on the last cited case it has been suggested that, "that able judge (and this is said with great deference) seems to have been misled by a considera- tion of gifts causa mortis under the civil law. Under that law these gifts formed quite an expanded system. They embraced all cases of gifts made in consideration of mortality, whether made in present danger or not." 3 Del. Ch. 66. See also Prec. in Ch. 269; 2 Ves. Sr. 437; 1 Bligh 533;

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