What Are Mortmain Statutes?

For almost all of civilization except for the past century or so, land rather than business ownership was the primary mechanism to acquire economic power (and by extension, the social and political power that can flow from economic power).

In medieval England, the monarchs did not like the idea of people transferring their estates in land to the Catholic Church because such a gift really was a “forever” gift since the lifetime duration of the Catholic Church’s property interest was potentially infinite.

This possibility especially distressed King Edward I, as the baron rebellion that led to the Provisions of Oxford in 1258 meant that he was collecting less income from the noble class and instead began to rely upon death taxes and estate administration to offset this income gap.

In the eyes of King Edward I, the Catholic Church was screwing him over in two grounds. First, it was gaining power by accumulating land with the passing of each generation that English monarchs feared could be used to challenge their power. And secondly, church property would not be subject to the lucrative taxes that funded King Edward’s regime. Instead of getting to collect 25% to 50% of the land or its fruits upon the death of a landowning Englishman every twenty to thirty years, property owned by the Catholic Church was on a trajectory to continue undisturbed during King Edward’s reign.

To stop the Catholic Church, King Edward I enacted “The Statutes of Mortmain” in 1279 and 1290. These enactments stated that “No land shall be given nor used in Mortmain” making it illegal for the Catholic Church to own gifted property and illegal for English landowners to give their property to the Catholic Church. King Edward’s stated justification was that “a dead hand yieldeth no service” because the Church could not perform feudal duties like military service and therefore had no right to an estate in land. That’s what Mortmain means in the modern vernacular–a dead hand–a dead hand can’t assist you, and therefore, you cannot assist it.

What may surprise you is that these mortmain statutes made their way to the United States as well except the underlying justification was different. In the United States, the concern was that Catholic clergymen would visit Americans on their deathbed and sooth them with words of a happy afterlife that would await them if only they gifted their real and personal property to the Catholic Church.

To combat this possibility, ten states–California, Florida, Georgia, Idaho, Iowa, Mississippi, Montana, New York, Ohio, Pennsylvania, plus the District of Columbia–enacted their own Mortmain Statutes to prevent people near death from devising their estate to religious institutions. With the exception of the Mississippi Constitution, which followed the old English approach in article 14 § 269 of its state constitution prior to 1940, these laws were aimed at protecting the spouse and children of the dying testator rather than using will statutes as a way to wage proxy war with the Catholic Church.

If you lived in Ohio anytime between 1803 and 1965, you were subject to 114 Ohio Laws 320, 346: “If a testator dies leaving issue, or an adopted child, or the lineal descendants of either, and the will of such testator gives, devises, or bequeaths such testator’s estate, or any part thereof, to a benevolent, religious, educational, or charitable purpose, or to any state or country, or to a county, municipal corporation, or other corporation, or to an association in any state or country, or to persons, municipal corporations, corporations or associations in trust for such purposes, whether such trust appears on the face of the instrument making such gift, devise, or bequest or not, such will as to such gift, devise, or bequest, shall be invalid unless it was executed at least one year prior to the death of the testator.”

If you as an Ohioan tried to give your money to the Catholic Church, and you died within a year of creating that will, then the church provision would be considered utterly void and the property would either pass according to alternative language for failed gifts in the will, the beneficiary listed in the residuary clause, or the state’s intestacy statute if the will was silent on the first two.

In the past five decades, Mortmain Statutes have become an anachronism as state courts held that such statutes were invalid according to their state’s constitutions. Some held them invalid for reasons of overbreadth (a healthy forty-year old male devising his property to the Catholic Church and dying in a car crash 350 days later would be included under this statute) or for violations of the state’s equal protection clause equivalent (because some statutes singled out churches with their Mortmain statutes but didn’t include a similar provision that would capture a doctor morally coercing a deathbed patient to give their estate to medical research). The last Mortmain Statute existing in the United States was repealed in Florida in 1986 when the Florida Supreme Court held that “today…charity provisions in a will…ought to be favored.”

So what protection exists for families to ward against what Lawrence Freidman calls: “the image–or fantasy–of the wicked priest preying on the dying man or woman, manipulating their fears of eternal damnation to squeeze out gifts for the church, and costing the family their inheritance.” Today, you must rely on the legal theories of fraud, duress, or undue influence to challenge such a will provision.