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Brown v Rotenberg et. Al. [1946] OR 363-376.

Facts:

P is widow of deceased who claims she was given Ontario bonds and contents of Safety Deposit Box. On the way to the hospital, crying and talking about "after he is gone" he gave her keys and passbook.

Issue(s):

What must be transferred to complete delivery of gift in contemplation of death?

Ratio:

To complete delivery, one must give over that which gives effective control/dominion over the thing, e.g. keys.

Analysis:

Donatio Mortis Causa (Cain v Moon)

1.Must be made in contemplation of death
-Need not be explicit, it can be made by inference (Gardner v Parker)
--His language "if anything should happen to me"

2.Sufficient delivery must be made
-Imperfect transfer is sufficient (Wasserberg)
--For instance, the means of getting the money may be transferred (Delgoffe)
-Bank book did not give any access to the subject matter, it was really just a receipt.
--Keys to safety deposit box however were only means of control.

3.There must be an intent to revert to donor if death is avoided
-Wife told him you'd be out of the hospital and would get all his stuff back

Holding:

P won on safety deposit box but not bank account.

Comments:

Two things happen in the transfer-one gives control to another and divests themselves of it.


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