Limitations jurisprudence of all Christian countries under all forms of ecclesiastical government (g). Till quite recently the restrictions of that capa- under which this capacity of inheritance was placed in this country were of two kinds: city. 51 & 52 Vict. c. 42. (a) By the Statutes of Mortmain, restricting the purchase of land by corporations of all kinds (h), ecclesiastical or civil, without a licence from the Crown; (b) By 9 Geo. 2, c. 36, prohibiting the devise of lands for the benefit of charities, corporate or incorporate. These Statutes of Mortmain which have been repealed by the Mortmain and Charitable Uses Act, 1888 (51 & 52 Vict. c. 42), are thus summarized in the Schedule to that Act. 7 & 8 Will. 3, c. 37. Statutory exemptions in favour of church. Session and Chapter. 7 Edw. 1...... 13 Edw. 1. c. 32 18 Ed. 3. st. 3. c. 3 15 Ric. 2. c. 5 23 Hen. 8. c. 10 Title. Statut de Viris Religiosis. Remedy in case of mortmain under judgements by collusion. Prosecutions against religious persons for purchasing lands in mortmain. St. 7 Edw. 1. de Religiosis. Converting land to a churchyard declared to be within that statute. Mortmain where any is seised of lands to the use of spiritual persons. Mortmain to purchase lands in gilds, fraternities, offices, commonalties, or to their use. An Acte for feoffments and assurance of landes and tenements made to the use of any parisshe Churche, Chapell, or suche like. The effect of these statutes was to forbid the alienation of land to corporations, and to prevent corporations, religious, charitable, or otherwise, from holding land except with the licences of the Crown and of the chief lord. By 7 & 8 Will. 3, c. 37, the Crown was given power to give licence to alien in mortmain and to take and hold in mortmain. This Act has also been repealed by 51 & 52 Vict. c. 42. The church was, however, exempted from the Mortmain Acts toria Civile di Napoli, 1. 2, c. 8, s. 4; (g) X. iii. 13, c. 2. Sarpi (Works, 160]; Böhmer, Inst.; Jus Parochiale ad fundamenta genuina revocatum, sect. 5, c. 3, §§ 3, 4, 5. Vide supra, pp. 1121, 1122. (h) By the civil law a corporation was incapable of taking lands, unless by special privilege from the emperor; "collegium si nullo speciali privilegio subnixum sit, hæreditatem capere non posse, dubium non est." Cod. lib. vi., tit. xxiv., lex 8. in many respects by later statutes. They may be enumerated as follows (i): 17 Car. 2, c. 3; 29 Car. 2, c. 8; 1 & 2 Will. 4, c. 45, and 13 & 14 Vict. c. 94, s. 23, enabling owners of tithes to grant them or part thereof for augmenting the benefice of the parish in respect of which they arise. 2 & 3 Ann. c. 20, ss. 4, 5, enabling gifts to the governors of Queen Anne's Bounty. 42 Geo. 3, c. 116, s. 50, enabling bequests by will for the redemption of land tax on all charities. 43 Geo. 3, c. 108, enabling persons by deed enrolled or by will executed three months before their death, to give land not exceeding five acres, or goods and chattels not exceeding in value 5001., for building churches, providing mansion houses, or augmenting glebes in certain cases. 51 Geo. 3, c. 115, enabling lords of the manor to grant five acres of the waste for the same purposes. 58 Geo, 3, c. 45, ss. 33, 36, 52, enabling conveyances of lands not in mortmain to be made to the Church Building Commissioners as sites for churches, &c. 3 Geo. 4, c. 72; 5 Geo. 4, c. 107; 1 & 2 Vict. c. 107; 3 & 4 Vict. c. 60, and 7 & 8 Vict. c. 65, extending this last provision. The statutes authorizing the exchange of glebe lands, and in certain cases the purchase of lands for residence houses, 17 Geo. 3, c. 53; 55 Geo. 3, c. 147; 1 & 2 Vict. c. 23, and 28 & 29 Vict. c. 69 (k). 6 & 7 Vict. c. 27, ss. 12, 22, enabling ministers or incumbents created under that act to receive and take lands and goods. 14 & 15 Vict. c. 97, s. 8, enabling grants to create a repair fund for churches built under the Church Building Acts. 29 & 30 Vict. c. 111, s. 9, enabling the Ecclesiastical Commissioners to take and hold lands "which they may consider suitable and convenient for annexation to any benefice with cure of souls." 36 & 37 Vict. c. 50, enabling sites to be granted for churches and residence houses. And 41 & 42 Vict. c. 68, s. 2, enabling gifts of real property to be made to the Ecclesiastical Commissioners for the endowment funds of the new bishoprics to which that act refers (7). ment of money By 18 & 19 Vict. c. 124 (The Charitable Trusts Amendment 18 & 19 Vict. Act, 1855), s. 35, any incorporated charity might with the con- c. 124. sent of the Charity Commissioners "Invest money arising from Re-investany sale of land belonging to the charity, or received by way of in land. equality of exchange or partition, in the purchase of land, and may hold such land or any land acquired by way of exchange or partition, for the benefit of such charity, without any licence in mortmain." By 33 & 34 Vict. c. 34, s. 1, corporations and trustees in the 33 & 34 Vict. (i) Vide infra, Part IX., Chaps. IV., V. (k) Vide supra, pp. 1125-1196, 1307-1318. (7) Vide supra, pp. 28, 30. c. 34. c. 34. Investment on mortgage. 33 & 34 Vict. United Kingdom holding moneys in trust for any public or charitable purpose might "invest such moneys on any real security authorized by or consistent with the trusts on which such moneys are held, without being deemed thereby to have acquired or become possessed of any land within the meaning of the laws relating to mortmain, or of any prohibition or restraint against the holding of land by such corporations or trustees contained in any charter or act of parliament." 9 Geo. 2, c. 36. Exemptions from this last statute. Purchasers for value. 31 & 32 Vict. c. 44. Sect. 2, provides for a sale of the premises instead of a foreclosure being decreed in any suit relating thereto. The act 9 Geo. 2, c. 36, did not strike at the granting of land to corporations, or at the holding of land by corporations, but at the gift of land or of money to be laid out in land, by will or shortly before death. By sect. 1 of that act, no lands, or stock, or money to be laid out in lands was to be given for charitable uses, unless by deed indented, executed before two witnesses twelve months before death of donor, and inrolled in Chancery; or unless in the case of stock there had been a transfer six months before death; and in every case unless the transfer were to take effect for the charitable use intended immediately in possession. By sect. 2, this condition of execution of the transfer twelve months or six months before the death was not to apply to bond fide sales. Sect. 3 made all gifts, otherwise than according to the act, void. Sections 4 and 5 made exceptions in favour of the universities and colleges. By 43 Geo. 3, c. 107 (m), this act was not to extend to lands, &c. bequeathed to the governors of Queen Anne's Bounty. Several charities not particularly connected with the church have by special acts obtained exemption from the restrictions of this statute (n). Many of the acts, moreover, which have been already cited (o), and which have been passed since 9 Geo. 2, c. 36, exempt the charities to which they apply from the operation of this act, as well as from the operation of the older statutes of mortmain. Purchasers for valuable consideration, who had not complied with all the formalities of 9 Geo. 2, c. 36, were protected by 9 Geo. 4, c. 85, and 24 Vict. c. 9 (p). The latter statute was extended to purchases completed before May 17, 1866, by 27 Vict. c. 13, and to leases, by 26 & 27 Vict. c. 106, and still further by 29 & 30 Vict. c. 57. By 31 & 32 Vict. c. 44, sites for buildings for religious, (m) See also 45 Geo. 3, c. 84, s. 3. (n) See Tudor, Law of Charitable Trusts, ed. 3, pp. 426-433; Tyssen, Law of Charitable Bequests, chaps. 27 and 28. (o) 42 Geo. 3, c. 116, s. 50; 43 Geo. 3, c. 108; 51 Geo. 3, c. 115; 1 & 2 Will. 4, c. 45; 3 & 4 Vict. c. 60; 6 & 7 Vict. c. 37; 13 & 14 Vict. c. 94; 14 & 15 Vict. c. 97; 36 & 37 Vict. c. 50. (p) See also as to sites for schools for the poor, 4 & 5 Vict. c. 38, s. 16. educational and other charitable purposes might be granted for valuable consideration, and were not to be avoided by the death of the grantor within six months. The act of 34 & 35 Vict. c. 13, introduced a new system, that 34 & 35 Viet. of enrolment in the books of the charity commissioners twelve c. 13. months before death; by which method lands to a certain amount might be given for public parks, schools or museums, notwithstanding the act 9 Geo. 2, c. 36. of 9 Geo. 2, The act of 9 Geo. 2, c. 36, received a most extensive inter- Construction pretation from the courts. The decisions on this subject may be divided into two classes: (a) What might not be bequeathed; (b) For what purposes chattels in themselves lawfully be queathable might not be bequeathed. c. 36. (a) Under the first head, everything savouring of realty, What may sometimes called impure personalty, has been holden to be not be bewithin the intention of the statute, and to be incapable therefore queathed. of being bequeathed upon charitable trusts. This rule was holden to comprise, among other things, bequests of growing crops, leaseholds, mortgages of all kinds, money secured by a vendor's lien, legacies charged on land, judgment debts secured on real estate, money secured by mortgage of turnpike and harbour tolls, and money to arise from the sale of real estate (7). The decisions varied as to money secured on mortgage of municipal corporation property, including and principally consisting of rates; but the later cases tended to treat such money as pure personalty (»). Where a bequest was made to a charity out of a mixed fund, consisting partly of pure personalty and partly of personalty savouring of realty, the assets were not marshalled so as to make the charitable bequest come out of the pure personalty, but the charity had its bequest out of both funds rateably, and lost all that portion of the bequest which would come out of the impure personalty (s). may not be (b) As to the second head: money or other lawful objects of For what purbequest to charities could not be bequeathed to them to be laid out poses bequests in land, or for buildings which would require land for their sites, made. or for paying off incumbrances on land holden by charities (t). Money might, however, be bequeathed for erecting or repairing buildings on land already in mortmain (u), or for building a charitable institution, if lands were given by some other person Where be for the site of it (r); but money might not be given to trustees of a charity on condition of their finding lands on which an institution might be built (). Where a bequest could be applied in a legal or in an illegal quest upheld. way, the bequest will be upholden on the supposition that it will be applied for the lawful purposes (). And the court has gone so far as to hold that a bequest of residue to trustees, to be applied by them "in aid of erecting or of endowing an additional church at A.," is good, and that the trustees are for this purpose entitled to take the whole of the residuary pure personalty and 5007. out of the impure personalty under 43 Geo. 3, c. 108 (z). 51 & 52 Vict. c. 42. Forfeiture on unlawful assurance or mortmain. Thus much has been said upon the statute of 9 Geo. 2, c. 36; partly because cases still arise in the administration of estates where the testator has died before the recent legislation, presently to be noticed, and where therefore the old law has still to be applied. The law of mortmain in its stricter sense and as applied by 9 Geo. 2, c. 36, has, in recent years, been first codified and then amended. First came The Mortmain and Charitable Uses Act, 1888 (51 & 52 Vict. c. 42), which repealed 9 Geo. 2, c. 36, and enacted as follows (a): PART I. Sect. 1.-" (1.) Land (b) shall not be assured to or for the benefit of, or acquired by or on behalf of, any corporation in acquisition in mortmain, otherwise than under the authority of a licence from Her Majesty the Queen, or of a statute for the time being in force, and if any land is so assured otherwise than as aforesaid, the land shall be forfeited to Her Majesty from the date of the assurance, and Her Majesty may enter on and hold the land accordingly: (2.) Provided as follows: (i.) If the land is held directly of a mesne lord under Her Majesty, that mesne lord may enter on and hold the land at any time within twelve months from the date of the assurance: (ii.) If the land is held of more than one mesne lord in gradation under Her Majesty, the superior of those mesne lords may enter on and hold the land at any time (v) Philpot v. St. George's Hospital, 6 H. L. p. 338. (x) A.-G. v. Davies, 9 Ves. p. 535. (y) Tudor, Law of Charitable Trusts, ed. 3, pp. 28, 413, 414. (z) Sinnett v. Herbert, L. R., 7 Ch. App. p. 232, reversing 12 Eq. p.201; Champneys v. Davy, 27 W. R. p. 390; Re Hendry, Watson v. Blakeney,56 L. T. p. 908; W. N. 1887, p.93. (a) By s. 11, the Act does not extend to Scotland or Ireland. (b) Land, as it will be seen, had a very extended definition given to it by s. 10; but this definition was much modified by 54 & 55 Vict. c. 73, s. 3. |