CHARITY
592
CHARITY
"Upon the development of the feudal system at
the Norman Conquest", says Chancellor Kent (4
Kent, 504), " lands held in tenure ceased to be divisi-
ble in consequence of the feudal doctrine of non-
alienation without the consent of the lord. . . . The
restraint upon the power of devising did not give way
to the demands of the family and public convenience,
so early as the restraint upon alienation in the lifetime
of the owner. The power was covertly conferred by
means of the application of uses; for a devise of the
use was not considered a devise of the land. The
mode of doing this was by a feoffment to the use of
the feoffor's last will, and the feoffee being considered
as seized of the use, not of the land, could devise it.
The devise of the use was supported by the courts of
equity, as a disposition binding in conscience; and
that equitable jurisdiction continued until the use
became by statute the legal estate. The Statute of
Uses of 27 Henry VIII, like the introduction of feuds,
again destroyed the privilege of devising, but the dis-
ability was removed within five years thereafter by
the Statute of Wills of 32 Henry VIII."
In the beginning of the reign of Charles II, military tenures were abolished so as to render the disposition of real property by will absolute. While the power of disposition of real property, as well as personal property either by the common law or by virtue of the statute above referred to, has been made thus free, there still remain certain restrictions upon indi- viduals which must be considered.
All persons of sound mind are competent to be- queath and devise real and personal estate, excepting infants and married women. In England a married woman may now by statute make her will as freely as if unmarried. In some of the United States, if not in most of them, the power of married women over their separate estates, saving to the husband certain proportions in case he should elect to take against the will, is as great as that of unmarried women; that is, married women are for the most part put on the same plane as men; they have certain rights in a proportion of the real and personal estate of their husbands, which he cannot void by will. There are, however, certain restraints upon alienation either by deed or by will, the first of which has already been mentioned, viz: alienation in "mortmain", a word coined to represent the condition where land has come into the possession of a dead hand, or in Latin mortua manus. An alienation of lands and tenements to any corporation, sole or aggregate, ecclesiastical or temporal, is such an alienation.
After the introduction of the feudal system it was always, and is still, necessary in England to have a licence in mortmain from the Crown to enable a cor- poration to purchase lands, because the king is the ultimate lord of every fee, and save by his own con- sent lie cannot lose liis privilege of escheats and other feudal profits by the vesting of lands in tenants that can never be attainted or die. "In strictness, how- ever, the license to hold in mortmain was only a waiver of the right of the Crown to enter on the lands alienated; for as no royal charter can per se take away the property or prejudice the interest of the subject, such license did not abrogate the right of the mesne lords to enter, and therefore with respect to them, the corporation was not secure until the lapse of the periods respectively limited for the assertion of their rights" (Grant on Corp., 101, quoted in Farring- ton v. Putnam, 90 M. 418).
Originally the prohibition extended only to relig- ious houses, bishops, and other sole corporations, ex- cluding the parsons of parishes, who were in effect wile corporations and not included therein, but by the Statute "de Religiosis" (7 Edward I, c. 2) it was provided that no person, whether religious or other- wise, should sell, buy, or receive under pretence of a gift, or term of years or any other title whatsoever,
any lands or tenements in mortmain under penalty
of a forfeiture. Various attempts to evade this stat-
ute were met by subsequent statutes. In the reign
of George II (9 George II, c. 36) a statute was passed
that no lands or tenements or money to be laid out
thereon should be given or charged with any charita-
ble uses whatsoever, excepting by deed indented,
executed in the presence of two witnesses, twelve
calendar months before the death of the donor and
enrolled in the Court of Chancery within six months
after its execution. This act and its amendments
were repealed in 1888, but new legislation codified
the law on the subject, practically re-enacting the
provisions of the existing law.
As the object of the statutes of mortmain was solely political, they were held not to apply to the alienation of land in the West India colonies or in Scotland. These statutes were not re-enacted in the United States, and therefore we must look to the special restrictions contained in the statutes of the several States, whether general or special, whence corpora- tions derive their existence, for the limitations upon their power to purchase and hold real estate, and also to the force to be given to the exception of corpora- tions out of the English Statute of Wills, which de- clares that all persons other than bodies politic and corporations may be devisees of real estate.
At common law every corporation has the capacity to purchase and alienate lands and chattels, but in England corporations, both ecclesiastical and lay, under the statutes above referred to have lost this capacity. In the United States, as has been said, the statutes of mortmain are for the most part not recognized, but conveyances by deed or will of lands and tenements made to bodies corporate are void unless sanctioned by charter or act of legislature, and the inference from the statutes creating cor- porations and allowing them to hold real estate to a limited extent is that statutory corporations can- not hold real estate for purposes foreign to their institution.
The object of the exception of corporations from the English Wills Act was to prevent the locking up of property in perpetuity and also to prevent the imposition upon dying persons, who might thus be persuaded to give their estates from their families to charitable objects. The English, statute of charitable uses has not been re-enacted probably in any of the United States, and it would seem that a devise not directly to a charitable corporation but in trust for such corporation would be good, on the principle that a court of equity has jurisdiction over bequests and devises to charitable uses independent of the statute. It is no valid objection to a grant or devise to a charitable use that it creates a perpetuity or renders the estate granted or devised for the purposes in- alienable. (See Trusts and Bequests.)
Lilly and Wallib, A Manual <>f the Law Specially Affecting Cathol irs (London, 1893), under Trusts anil Bequests, 135-67; Desmond, The Church and the Law (Chicago. 1898), under Bequests to Charity, 44 to 56.
Walter George Smith.
Charity and Charities. — In its widest and high- ost sense, charity includes love of God as well as love of man. Tin- latter kind of love is so closely con- nected with, ami dependent upon, the former, that neither it nor its fruits, under the Christian dispensa- tion, can be adequately set forth without a brief preliminary glance at the relations existing between the two kinds.
Introductory. — As a virtue, charity is thai habit or power which disposes us to love God above all creatures for Himself, and to love ourselves and our neighbours for the sake of Coil. When this power or habit is directly infused into the soul by God, the virtue is supernatural; when it is acquired through
