This statute mode all alienations in mortmain unlawful, and made the provision effeetive by en acting that all such conveyances should work a forfeiture to the lord of the land attempted to be eoncetcd. The lawyers of the time, lemever, soon devised a method for evading the statute by the use of recovery (1•V• ) • This deVekiala t in the e0a1111011 law was Met by a stew loUj,lat jVe eyniehuvill (13 Edw•. 32), in 1b2s•t5„ which forbade alienation of lands in mortmain by common recovery, and attached the same penalty to such alienation as in ease of the conveyances forbidden by the Statute De lieligiosis. The Statute Quia Emptores (1,-.t Edw.
1.. eh. which removed sonic of the law restraints upon alienation, expressly excluded from its operation all alienation in mortmain.
These statutes in time were evaded by the practice of conveying lands to a layman to be by him held for the use or benefit of an ecclesi astical corporation, \dila obligation came to be enforced by the Chancellor. The 115r• was the forerunner of the modern trust and the basis of equity jurisdiction over trusts. And it. is to the great struggle over alienation in mortmain more than to any one other factor that the growth of the law of trusts is due. In 1391 this practice was forbidden on pain of forfeiture, unless such conveyance to nscs was licensed by the King (15 Itichard hi., ch. 5).
The Statute of Wills, allowing testators to dispose of their property by will, (lid not in terms permit the testator to devise real estate to a eorporation. By judicial interpretation, how ever, the power was established to devise lands to corporations for charitable purposes.
From this period down almost to the present time statutes have been enacted modifying or further restraining the power of alienation to corporations, whenever judicial interpretation o• the ingenious devices of lawyers made such enactments necessary.
The statute 9 Geo. 11., ch. 36 (173(i), is note worthy in that it shows that the policy on which the Statute of had hitherto been based had then changed somewhat. This statute, re citing that mischief had greatly increased by many large and improvident dispositi CMS made by languishing and dying persons to chari table uses, to take place after their deaths. to the disinhersion of their lawful heirs," enacted that in future no hinds or sums of money to he laid out in land should be given to any person or body unless such gift or conveyance should be made or executed in presence of two wit nesses twelve months before the death of the donor or grantor, and he enrolled in the Court of Chancery within six months after the execu tion. Under this act, therefore, a person on his deathbed cannot in England give land, or money to tiny land, for a charitable purpose.
It can only be done in the life of the donor at least twelve months before his death, and the property must be completely alienated so that he has no further control .tver it. The deed must. have 0 present operation, and must not reserve any life interest to the donor; it must be done at once and forever. The policy of this statute sometimes been questioned, and several well known merles of evading the statute have been adopted from time to time.
All the English statutes of mortmain were revised and by the statute 51 and 52 Victoria, ch. 4'2. In general the statute still restricts alienation to corporations, but makes numerous exceptions in favor of gifts to churches, puldie parks. museums. and for literary and scientific purposes. (lifts to charity by will are regulated by 54 and 55 Victoria, eh. 73, which in general permits such gifts of land to charities if the land be sold within one year from the tes death. Thronehmil the period of mort main legislation it. was possible for the Crown to grant a itvm•titrnin license enabling a ear i?oration to purchase and hold lamls, a preroga tive which at times was freely exercised.
Owing generally to the absence of great reli gious corporations in this country, and to the tact that the feudal system never obtained a foothold here, the mortmain arts were not re enacted in the United States, with possibly one or two exceptions. Pennsylvania has a mort main act, and New York has a statute which, like the statute of 9 George I I., seems calculated rather to restrain a testator from making un wise and improvident. gifts to charity than to prevent ,land-holding by corporations. The stat ute provides that a testator who leaves surviv ing him it wife, child, or parent shall not devise or betpwath more than one-fourth of his estate to a charitable corporation; and no such devise or bequest shall be valid unless made more than two months before the death of the testator.
In many States business corporations may not receive real estate by devise, but generally chari table corporations may do so; and in most Stales there is no restraint upon coLveyance of lands inter ricos to corporations, unless the charter of the corporation or the general law under which it is created limits the total amount of land which the corporation may bold. See CHARITABLE TRUSTS; Uses; and Tnrsr; and consult the authorities there referred to, and also under PEAL ESTATE. Also consult: High more, I iew of the History of Mortmai» (Lon don. 1809) ; Rawlinson, Notes on the .1Iortmuin Acts (London, 1S77).