78S 



MORTMAIN. 



MORTUARY. 



786 



to uses called charitable uses, to take place after their death, to the 

 disherison of their lawful heirs ; for remedy whereof be it enacted. 

 that from and after the 24th day of June, 1736, no manors, lands, 

 tenements, rents, advowsons, or other hereditaments, corporeal or 

 incorporeal whatsoever, nor any sum or sums of money, goocjs, 

 chattels, stocks in the public funds, securities for money, or any other 

 personal estate whatsoever, to be laid out or disposed of in the pur- 

 chase of any lands, tenements, or hereditaments, shall be given, granted, 

 aliened, limited, released, transferred, assigned, or appointed, or any ways 

 conveyed or settled to or upon any person or persons, bodies politic or 

 corporate, or otherwise for any estate or interest whatsoever, or any 

 ways charged or encumbered by any person or persons whatsoever, in 

 trust or for the benefit of any charitable uses whatsoever, unless such 

 gift, conveyance, appointment, or settlement of any such lands, tene- 

 ments, or hereditaments, sum or sums of money, or personal estate 

 (other than stocks in the public funds), be made by deed indented, 

 sealed and delivered, in the presence of two or more credible wit- 

 nesses, twelve calendar months at least before the death of such 

 donor or grantor (including the days of execution and death), and be 

 enrolled in His Majesty's High Court of Chancery within six calendar 

 months after the execution thereof ; and unless such stock be trans- 

 ferred in the public books usually kept for the transfer of stocks, six 

 calendar months at least before the death of such donor or grantor 

 (including the days of the transfer and death) ; and unless the same be 

 made to take effect in possession for the charitable use intended im- 

 mediately from the making thereof, and be without any power of revo- 

 cation, reservation, trust, condition, limitation, clause, or agreement 

 whatsoever, for the benefit of the donor or grantor, or of any person or 

 persons claiming under him." The act provides that what relates to 

 the time before the grantor's death for sealing the deed and making the 

 transfer shall not extend to any purchase to be made really and bon& 

 fide for a full and valuable consideration, actually paid at or 

 before the making of such conveyance or transfer without fraud or 

 collusion. The two universities of Oxford and Cambridge, and the 

 colleges within them, were excepted from the operation of the act ; 

 and the colleges of Eton, Winchester, and Westminster, but in favour 

 of the scholars only, were also excepted. This act limited the number 

 of advowsons which any college or house of learning (before referred 

 to in the act) could hold ; but this restriction was removed by the 

 45 Geo. III., c. 101. By the 5 Geo. IV., c. 39, the British Museum is 

 excepted from the statutes of mortmain ; and various other public 

 bodies have been in like manner excepted by act of parliament. The 

 judicial interpretation of this act, called the Mortmain Act, has 

 prevented a large amount of property from being given to charitable 

 uses. A bequest of money for charitable purposes, to arise from 

 the sale of land, is void ; or of money due on mortgages ; or of 

 money to pay off the mortgage on a chapel ; or of money to build 

 a chapel, unless some land already in mortmain is distinctly pointed 

 out by the terms of the bequest ; or of mortgages both in fee and 

 for years ; or of money to be laid out on mortgage security. This 

 act can only be called a Mortmain Act with any propriety so far as 

 it relates to corporate bodies, and even with regard to them with no 

 strict propriety, inasmuch as the Mortmain Acte were intended to 

 prevent corporate bodies holding lands to their own use, or to prevent 

 other persons holding them to the use of corporate bodies. The act 

 is in fact intended to limit the power of giving property for charitable 

 purposes to any person or persons, and is very improperly called 

 a Mortmain Act, if we consider that many gifts of land for charitable 

 purposes were not Considered, before the passing of this act, as within 

 the old statutes of mortmain. 



The history of mortmain is intimately connected with the ecclesi- 

 astical and civil history of this country. The jealousy which all man- 

 kind feel against rich and powerful bodies of men, who are combined 

 in a perpetual brotherhood and fraternity, and the constantly increasing 

 wealth and power of the ecclesiastical bodies in this country, doubtless 

 contributed strongly to the passing of the enactments called the 

 statutes of mortmain ; and this, independently of the solid reasons 

 against such bodies having large possessions, so long as the strict 

 system of tenures continued. In modern times, when the lord 

 can lose nothing by land being conveyed to a corporation or 

 to a charitable use, except the remote contingency of escheat, a 

 new notion lies at the foundation of the restraints upon such 

 transfers or gifts of land, which, as Lord Hardwicke expressed it, was 

 this: 



" The mischief which the legislature had in view in the Mortmain 

 Act (as appears from the recital, and which is agreeable to the title) 

 was to restrain the disposition of lands whereby they become inalien- 

 able." In another place he observes that " the particular views of the 

 legislature were two : first, to prevent locking up land and real pro- 

 perty from being aliened, which is made the title of the act ; the second, 

 to prevent persons, in their last moments, from being imposed on to 

 give away their real estate from their families." 



It will be perceived that the provisions of the act very imperfectly 

 correspond with this explanation of its object. Thus money may bo 

 given by will (if unaccompanied with a direction to lay it out in land) 

 to an eleemosynary corporation which is empowered to hold land in 

 mortmain, and it may be laid out in land, or, if necessary, a licence 

 may be obtained from the crown for that purpose. The judicial expo- 

 AHTS AND SCI. DIV. VOL. V. 



sition, that money given by will, to arise from the sale of lands, is 

 within the act, involves a direct contradiction ; it being expressly pro- 

 vided by the mode of donation, in the case just mentioned, that the 

 '.and shall not, so far as the donor can prevent it, come into hands in 

 which it will be inalienable. 



The act, which is but a clumsy contrivance, and the exposition of 

 it, are in fact directed against gifts for charitable uses ; though it is 

 probable that the notion of the impolicy of allowing lands to be for 

 ever set apart, or " locked up," had also some influence on the legis- 

 lature. If this, however, had been the leading idea, a repeal of the 

 statute which allows the crown to grant a licence to hold lands in 

 mortmain would have been a proper addition to the act. But the legis- 

 lature or the promoters of the act were apparently anxious to find out 

 some reason or excuse for passing such an act in a country where gifts 

 for charitable uses have been so long established and approved by 

 popular opinion. The exceptions made in this act in favour of the 

 universities and colleges also show that there was a party in the legis- 

 lature strong enough to prevent the operation of this act being 

 extended to those corporate bodies. 



It should be borne in mind that the terms charities and charitable 

 uses have a legal meaning very different from the popular meaning of 

 the term charity. 



The great amount of property in England and Wales which is 

 appropriated to charitable uses, and the importance of many of those 

 establishments which are supported by such property, render it neces- 

 sary to give some exposition of the nature and administration of 

 charities in this country, which is most conveniently done under the 

 head of USES, CHARITABLE. 



The term Mortification in Scotland expresses pretty nearly what 

 mortmain does in England. 



According to Stair (book ii., tit. iii., 39, ed. Brodie), " infeftmeuts of 

 mortified lands are those which are granted to the kirk or other incor- 

 poration having no other reddendo than prayer and supplications and 

 the like : such were the mortifications of the kirk lands granted by 

 the king to kirkmen, or granted by other private men to the provost 

 and prebendars of college kirks founded for singing ; or to chaplainries, 

 preceptories, altarages, in which the patronage remained in the mor- 

 tifiers." The act of 1587, c. 29, passed in the eleventh parliament of 

 James VI., began by reciting that the king " and his three estaites of 

 parliament perfitely understood the greatest part of his proper rent to 

 have bene given and disponed of auld to abbaies, monasteries, and 

 utheris persons of clergie," &e. : it further recited that " his Hienes, 

 for the great love and favour quhilk he bearis to his subjectes, 

 was nawaies minded to greeve them with unprofitable taxations, 

 specially for his royal support." The act then went on to declare 

 that it was " founde maiste meete and expedient that he sail have 

 recourse to his awin patrimony dispoued of before (the cause of 

 the disposition now ceasing) as ane helpe inaist honorable in respect 

 of himselfe and least grievous to his people and subjectes." The 

 act then proceeded to unite and annex to the crown (with the 

 exceptions after specified in the act) all the lands, &c., belonging to 

 the ecclesiastical and religious personages therein mentioned. This 

 act was in effect more extensive than the similar acts of Henry VIII. 

 in England. 



Since the Reformation, lands given in Scotland for charitable pur- 

 poses are given to the trustees of the charity, to be held either in 

 blanch or feu holding. (Bell's ' Diet, of the Law of Scotland.') 



MORTUARY, from the Latin mortuarium, by our Saxon ancestors 

 called raul-j-ceat, soul-shot, or money paid at death. The mortuary 

 was really a gift left by a man to his parish church, as a recompense 

 for his personal tithes and offerings not duly paid. Dugdale, in his 

 ' History of Warwickshire,' p. 679, enters minutely into the reason and 

 original occasion of such bequests, the earliest mention of which he 

 finds in the ' Council of ^Ensham," in the year 1009, and in the ' Laws 

 of King Canute.' Mortuaries were afterwards distinguished into dead 

 mortuaries, and mortuaries viva, or live mortuaries : the former con- 

 sisting of money, or any other goods or chattels ; the latter of live- 

 stock : Blount says the second-best beast, after the first had been paid 

 to the lord for his heriot. After the Conquest we find the mortuary 

 sometimes called a cars-present, because the beast was presented with 

 the body at the funeral. John Arden, in his will dated 4th of June, 

 17 Hen. VIII., says, " Item, I bequeath for my mortuary, or cors- 

 presente, a black gelding ambling, that Almighty God may the rather 

 take my soul unto his mercy and grace." Dugdale quotes several 

 ancient wills from the time of Hen. III. to that of Henry V., in 

 which horses, caparisoned and bearing the military weapons of the 

 defunct, are directed to be led before the corpse at his funeral, and 

 delivered as mortuaries. This was the origin of the practice of leading 

 horses at the funerals of persons of distinction. Mortuaries, in 

 time, were found oppressive to the yeomanry and poorer inhabit- 

 ants of parishes : they were regulated, and converted into a money 

 Dayment by stat. 21 Henry VIII., chap. 6, 1530. Kennett, in the 

 31ossary to his 'Parochial Antiquities,' says that a mortuary was 

 sometimes paid to the lord of a fee, as well as to the priest of the 

 parish. 



(Selden, ffiit. of Tythes, p. 287 ; Dugd., Hist. Wane., ut supr. ; 

 Jacob's Law Diet. ; Manning and Bray's Hist, of Surrey, i., pp. 386, 

 388; Kenuett's Paroch. Antiq., i., p, 101, and Glossnr.) 



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