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to leave a portion of his property to pious and charitable purposes, is in itself some evidence of his being actuated by high and moral feelings, and therefore unlikely to forget the sacred claims of kindred and dependents.

"The only imaginable case in which these considerations may be supposed unavailable, is that which your Committee have recognized as the religious objection, namely, the fear lest undue influence over the mind of a dying or languishing person, should be exercised by a minister of religion in favour of charity or religion, to the prejudice of the heir. And this is certainly the objection to which they are inclined to attach the most weight. Lord Hardwicke is even reported to have said, 'One of my chief reasons for laying a restraint on such donations is, lest the clergy of the Established Church should be tempted and instructed to watch the last moments of dying persons, as insidiously as even the monks and friars did in the darkest times of superstition and popery: and if ever we should have an ambitious clergyman for a prime minister, it would be the only way to acquire an interest at court, or preferment in the Church. Your Committee would refer to the remark of the Bishop of London on this dictum, and indeed to all experience of the past, as depriving this objection of most of its force as far as it relates to the Church of England; and they cannot but think that the authoritative statements of Dr. Cox, with respect to the doctrine of the Church of Rome, the sentiments of those who guide its practice, and the influence of public opinion on the great body of its clergy, are sufficient to dispel apprehension of the influence of the Roman Catholic priesthood. But while they think the popular fears on this subject exaggerated, your Committee admit the propriety of guarding against possible abuses by provisions founded on such principles as that of the Scotch Law of Death-bed, by which the heir can defeat a will made to his prejudice within sixty days before death, if the testator were then ill of his mortal disease, or that of the Code Napoleon, which renders the confessor incapable of inheriting from his penitent; as well by safeguards similar to that contained in the measure now before parliament for regulating charitable bequests in Ireland.

“With respect to the third objection, that which is taken on political grounds, your Committee believe very few people would be disposed to urge it at this day. The whole argument derived from the incapacity of land in mortmain to sustain the feudal civil and military incidents obligatory on the land, has for two hundred years ceased to have force, or even meaning, as applied to existing tenures. The dread entertained by political economists lest land held in mortmain should not be available for commercial purposes, must be now greatly mitigated by those alterations in our laws whereby every clergyman may now lease his land for farming purposes, in the same manner as lay landlords do: and your Committee would direct attention to the suggestions of Sir F. Palgrave and Mr. Hadfield, with respect to the possibility of devising means whereby land in trust for public purposes might, with due provision for the re-investment of its proceeds, be allowed to come into the market. The evidence of Mr. Cripps and Mr. Frere shows that charitable estates may be managed in every respect with as much benefit to the general interests of the community as those of private individuals.

"But among some even of those who are inclined to attach no great weight to such objections against a more liberal law with respect to donations for charitable and public purposes, an opinion seems to exist that the various exemptions which from time to time have been granted to particular charities, are so many and so ample, as practically to amount to all the relaxation of the law that is necessary. But even if this were a correct view of the practical results of the existing law, it should seem to be but an unsound state of things, when exemptions from a law are of such magnitude as to deprive that law of vitality and power. But upon mature deliberation, your Committee cannot coincide in the belief that the exemptions are such

as to render further relaxation undesirable. The whole tenor of the evidence submitted to them on this point is, that although many good and charitable purposes are exempted from the stringent operation of those laws, many difficulties still remain, even in the most favoured cases, and many good and excellent objects are either altogether proscribed, or surrounded with peril, owing to their operation. Our experience, indeed, of the results of these partial exemptions, is calculated to dispel many of the objections felt to an uniform modification of the present system of restriction. Your Committee would direct attention to the fact, that even to Queen Anne's Bounty, a charity more favoured by the law than perhaps any other, the amount of landed property bequeathed by will has not been so considerable as to warrant an apprehension that were the same favour extended to other charities, any great portion of the land of the country would fall into mortmain.

"In submitting this Report to your consideration, your Committee would remark, that from the intricacy and delicacy of the question, the nicety of its details, the conflicting judgments and opinions of eminent lawers on various points, they find it impossible to present in a Report, with entire confidence in its accuracy, a full and explicit abstract of the law practically in operation with respect to mortmain and charitable bequests; they therefore beg leave to refer for a copious and learned digest of the historical part of the question, to the evidence of Sir Francis Palgrave, corroborated, as it is, in a remarkable manner by that of Mr. Burge; to the evidence of the Bishop of London, Mr. Neville, Mr. Hadfield, Mr. J. Hodgson, and Mr. Mathews, for proofs of the injurious and unwise stringency of the operation of the law; and to that of the Rev. Thomas Sherborne, Mr. Gibson, and Mr. Jelf, of the power which exists of evading its restrictions, supposing testators are determined to do so.

"In conclusion, although your Committee do not feel authorized by the terms of reference, to report in favour of any specific alterations of the Laws of Mortmain, they feel bound to state, from an attentive consideration of the evidence submitted to them by witnesses whose means of information and authority must be held to be great, that the operation of the laws is most unsatisfactory, leads to doubt, expense, uncertainty, and litigation, and frequently defeats good and pious purposes, which the present aspect of the country would induce all men to wish fulfilled; while from the existing facilities for evasion, they cannot be regarded as serving the main purpose for which they are supposed to be maintained, by securing the heir from the unexpected alienation of property to which he might reasonably have hoped

to succeed.

"24 July 1844.”

No. II.

COMMITTEE OF 1851-2. DIGEST OF THE EVIDENCE.

Mr. CHAPMAN, a conveyancer.-The proper meaning of the word mortmain is, the conveyance of land to corporations and their successors, in which case there can be no death, and consequently no descent or devise, and there need not be any alienation; so that the same lands might remain in the same body for ever without any change. The popular sense of the word mortmain is, where lands are conveyed or devised to individuals, in trust for charitable purposes; in which case, they are regarded in law (as distinguished from equity) merely as individuals; and, upon their deaths, the land would go in the same way as on the deaths of individuals; but, as a court of equity would restrain them from dealing with the lands in any other way than for the purposes designated in the trust, the lands would, in fact, not be alienable in the sense of passing from one set of beneficial proprietors to another. In the first place, where land is held strictly in mortmain, it remains in the same body; in the other case, the body that holds the land changes, but the trusts and purposes remain the same, so that the evils incident to mortmain are the same in both cases; and the popular term "mortmain" is applied, as well to those gifts to trustees as to gifts to a corporation. In this state of things, the act of George II was passed, enacting, that no lands, or tenements, or hereditaments, nor any sums of money, or personal estate, to be laid out or disposed of in the purchase of lands, tenements, or hereditaments, shall be given, granted, aliened, assigned, or appointed to any persons, bodies corporate, or otherwise, for any estate or interest whatever, or in any way charged or encumbered, in trust, or for the benefit of any charitable use, unless such gift be made by deed made and delivered, in the presence of two witnesses, twelve months before the death of the donor, and be enrolled in Chancery within six months after the making thereof; and unless the same be made to take effect in possession for the charitable use intended, immediately from the making

* This witness stated the nature of the old statutes of mortmain-omitting any mention of the procedure provided by law-by which religious houses were practically enabled to dispense with them, upon payment of a fine for the alienation. He also most utterly misrepresented those statutes, as interfering with conveyances to persons not incorporate, in trust for pious uses; whereas these trusts were recognized by law up to the Reformation, and after the Reformation, for Protestant purposes, until the act of George II.

thereof, and be without any power of revocation, reservation, trust, or condition, for the benefit of the donor as grantor, or any persons claiming under him any estate "or interest". A great many cases, and a great deal of question, have arisen as to this last restriction; leaseholds for years and mortgages (though personal estate), and sums of money charged on land are within the prohibition. But there is a class of cases in which the law is in a state of uncertainty relating to property which has come into existence since the statute, consisting of gas shares, canal shares, shares in banks, railways, docks, and in public companies. With respect to any interest in land, the courts have been very acute in construing the act; and every possible interest is excluded. Even money left to build a church is held a bequest of real property within the prohibition, unless the land on which the church is to be built is already in mortmain. And land directed to be sold, and the produce to be applied to charitable purposes, is also within the prohibition, as well as pure personalty directed to be laid out in land. As to personalty otherwise there is no restriction. The distinction made between personal estate connected with land, and personal estate unconnected with land, is inconvenient: it produces litigation; for, when a testator leaves a legacy to a charity, the executor is bound to divide the property into mixed personalty and pure personalty, and pay a part only of the legacy, the courts having put this construction, that the charitable legacy is payable rateably out of both funds, and fails so far as the prohibited fund contributes. Now, it being in doubt, whether certain items are mixed or pure personalty, the executor is obliged to have recourse to the Court of Chancery to decide what he ought to pay. I think no mischief can arise from giving lands for sites of buildings of public utility. If land be given for a charity, the trustees cannot sell without a power in the deed. If a donor give land, it may be considered that his intention ought not to be interfered with by having the land aliened, even if the same revenue were secured from the funds; he might consider the land a better security.

There could be no objection to land being bequeathed to charitable purposes and then sold, and the produce applied to those purposes, assuming that it is desirable that personal estate should be given for charitable purposes. If a testator sell his land before he executes his will, and bequeaths the money to charitable purposes, the heir is as effectually disinherited as he could be by a devise of the land itself. There is no advantage in keeping up the distinction between personalty connected with land, and personalty not connected with land. The same restrictions which are applied to land should be applied to personalty; there should be general legislation applicable to both

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directed against undue influence. It is not desirable to put any restriction upon the power of a testator as to the disposal of his property, except for charitable purposes. I should be disposed to give a man the right, if he pleased, to disinherit his own family. A man ought only to be allowed to leave small sums for charity. I would make no exception of any charity, nor any exemption of any religious community, except as to land for sites of schools, chapels, and other religious buildings, hospitals, museums, and all public institutions. The restrictions of the statute do not apply if the "use" be not" charitable". Now, there is a case, where a man left property for the purpose of building a tomb for himself, and this was held not to be a "charitable use"; and I believe, according to the law as it stands, there is nothing to prevent a man from leaving estates of any amount for the purpose of building tombs for himself in every church in England. A man might lay out all the funds he died possessed of in the erection of a mausoleum. Any amount of real property may be bequeathed for any purpose which is not prohibited by law as immoral, or wrong, or charitable.

Mr. SHELFORD.-I think the provisions of the statute of George II are more stringent than a due regard to public policy would render desirable. There are many restrictions which operate very detrimentally to charitable purposes: as the not allowing the donor to retain a life-interest, and allowing him to have the power of revocation; and requiring him to live twelve months. It is inexpedient to require a gift to take effect in the lifetime, as it operates as a restraint on charitable donations, and prevents many which it is very desirable to encourage. A deed, even though it is to take effect at death, or reserving a life estate, in its effect is similar to a will-is a more formal instrument; and though a deed may be obtained under undue influence, a will may be more easily than a deed, as a will is more often made without the intervention of a legal adviser. Even if made on a death-bed, it is less possible that it would be open to such influence. And though a great deal has been said about undue influence, I have in my researches found only two reported cases, regarding Protestants or Protestant dissenters, where the question of spiritual influence has come into question, and the deeds were set aside in consequence. In both cases the bequests were for the personal use of the party. I am not aware of any cases reported of gifts in trust for Roman Catholic charitable purposes, having been set aside on the ground of undue influence by spiritual ascendancy. I think, however, the case of Middleton v. Sherborne, 4 Younge and Coll's Exch. Rep. is referred to in the Report of 1844. In that case, it was held that a bill in equity

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