Mortmain

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Mortmain is a legal term, derived from medieval French, literally meaning dead hand. Mortmain refers to the sterilisation of ownership of property by vesting it perpetually in a corporation (historically, this would usually by a corporation sole in the form of a religious office; today, insofar as mortmain prohibitions still exist, it refers more often to modern companies and charitable trusts). As the land was held in perpetuity, it would never escheat or pass by inheritance (and no inheritance tax would be payable upon it).

During the Middle Ages in England the church acquired a substantial amount of real estate. As the church was largely exempt from taxation, this was the cause of increasing tension between the church and the crown.

In 1279 and again 1290 Statutes of Mortmain were passed by King Edward I to circumscribe the church's holding of property, although limits on the church's power to hold land are also found in earlier statutes, including the Magna Carta of 1215 and the Provisions of Westminster of 1259.^[1] The broad effect of these provisions was that the authorisation of the Crown was needed before the land could vest perpetually in a corporation.

Although statutes prohibiting mortmain have been abolished in most countries today, the principle still subsists to a certain extent in relation to trust law in the form of the rule against perpetuities.

Mortmain played an important part in legal history, and earlier case law often needs to be considered against this background. For example, the judicial decision in Thornton v Howe (1862) 31 Beav 14 held that a trust for publishing the writings of Joanna Southcott^[2] was charitable being for the "advancement of religion". This decision is often held up as setting the bar extremely low in determing whether a charity is for the advancement of religion,^[3] but if one considers that at the time the statutes against mortmain were in force, and that the effect of the decision was that the trust was void, rather than imbuing it with special privileges in relation to taxation, it puts a very different spin on the ratio decidendi.

[edit] Footnotes

^ The nascent Provisions of Westminster were repealed by the Crown with Papal consent in 1262 and it was formally annulled in 1264. See generally Provisions of Oxford.
^ Who claimed she was pregnant by the Holy Ghost and would give birth to the new Messiah; a prediction which was apparently not borne out by events.
^ Hanbury & Martin, Modern Equity, cites it as authority for the proposition that: "any belief, no matter how outlandish, shared perhaps by only a handful of friends, be entitled to the perpetuity and fiscal advantages given to charities".