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Literally 'dead hand'. Mortmain is the practice of conveying land to a corporation, usually through a will, in such a way that it can no longer be freely alienated (i.e. disposed of). It is generally considered bad for a society's economic health when land (of which it is hard to find more) is not freely alienable. Moreover, it is especially difficult to barter or trade a piece of land when its use is restricted by terms set out by an individual who is now dead; hence the aptly descriptive term 'mortmain'.

Traditionally, corporations alone have been allowed, as a matter of law, to hold land in mortmain. Given, however, that corporations can in theory 'live' forever, many have come to view this as problematic. The reason is that any parcel of land that a corporation cannot legally sell becomes inalienable for an indefinite period of time. Historically, the Church has frequently drawn criticism for its encouragement of mortmain (with itself as beneficiary, of course). Critics have argued that the practice of making substantial testamentary gifts of land to the Church is not just bad for the local economy but can leave the testator's heirs (many of whom are already quite poor) utterly destitute as well.

By the 18th century the problems associated with mortmain were so severe that the (now defunct) Mortmain and Charitable Uses Act (1736) was enacted to prohibit the creation of trusts of land in favour of the Church or other charitable bodies. (As charities were not (and still aren't) subject to the rule against perpetuities, charitable gifts of land could easily be made in mortmain, much as gifts to the Church.)

The 1736 Act contributed to a new-found willingness on the part of English courts to recognise as 'charitable' a significantly wider range of organizations (especially those religious in nature) than it previously had. This liberality persists to this day. Remarkably, it is commonly thought that this tendency by the courts to recognize as charitable the various odd social and religious organizations that they do exemplifies a lofty propensity for institutional broadmindedness; in reality, this has little if anything to do with it. Instead, probate judges have long understood that seeking to benefit the Church or some other charity in one's will is by no means an act of pure selflessness. After all, by the time a will is probated, the testator, now deceased, stands to lose absolutely nothing as a result of his charitable giving. Furthermore, his bequest has effectively deprived his heirs of an otherwise golden opportunity to be genuinely selfless themselves, by squarely removing the bounty from their hands. In fact, had the testator truly been motivated by a genuine desire for selfless giving, he would have made his gift during his lifetime, not after his death. Further clouding the picture, of course, are the generally pernicious social implications of mortmain considered above.

In short, the courts' willingness to expand the categories of charity arose as much from a desire to restrict charity -- at least posthumous charity -- as to encourage it.

See also will, probate, rule against perpetuities.

Trust Law