Miller v. Lerch

GRIER, Circuit Justice.

In England, under the statute of 9 Geo. II. c, 36,² when lands are devised to a charity, the trust not only is itself void, but it vitiates the devise of the legal estate on which it was engraft-ed. And therefore in such cases the heir may recover at law, except where there are other trusts not charitable, which, of course, would entitle the trustees to retain the estate, and oblige the heir to prosecute his claim in equity. Jarm. Wills, 200. But this statute, which is usually, though rather inaccurately, called the “statute of mortmain,” was never adopted in Pennsylvania, nor is there to be found any similar provision in her own legislation. It is, however, by virtue of this statute alone, and not by any principle of the common law or provision of earlier statutes, that courts of law in England treat the devise or gift as void, and permit the heir to recover in them. Doe v. Wrighte, 2 Barn. & Ald. 710. I am aware that the judges of the supreme court of Pennsylvania, in their report upon the English statutes in force in Pennsylvania,, make the following remarks: “There are several statutes called statutes of mortmain, one of which (the statute de religiosis) was passed in the 7th year of Edward I. (statute the 2d); another in the 13th year of Edward I.(chapter 32); another in the 15th year of Richard II. (chapter 5); and another in the 23d year of Henry VIII. (chapter 10). These statutes are, in part, inapplicable to this country, and, in part, applicable and in force. They are so far in force that all conveyances either by deed or will, of lands, tenements or hereditaments made to a body corporate or for the use of a body corporate, are void, unless sanctioned by charter or act 'of assembly. So also are all such conveyances void made either to an individual or to any number of persons associated but not incorporated, if the said conveyances are for uses or purposes of a superstitious nature, and not calculated to promote objects of charity.” 3 Bin. 626.

How far this report may be entitled to consideration as a judicial authority, it is not necessary for me to consider; for the assertion that deeds and wills of land made to a body corporate are void, has long been admitted to be a mistake. Indeed, I fully concur with those who refuse to admit that any of the English statutes of mortmain have, or ever had, any operation in Pennsylvania. They were mere statutes of policy, in contravention of the common law, and were passed to prevent the king and mesne lords from being deprived of their feudal and seignoral rights accruing by prerogative and tenure. Some of them were .aimed avowedly at the Roman Catholick religion. Our tenures of land subject them to none of those feudal burthens from which they escape by alienation to a corporation, and which, for this reason, were called alien-ations in mortmain, or dead hand. Lands held by corporations may, in general, be aliened and taxed as lands held by natural persons are; and the state loses none of her prerogatives over them, except the possible chance of an escheat or collateral inheritance tax. They are, therefore, not properly in mortmain as regards the prerogative of the state as superior lord. And how can the terms “superstitious” be predicated of any religion in this state? whose constitution acknowledges no church as orthodox, and holds all sects and all religions entitled not merely to toleration, but to equal protection? But it is not necessary for the court here to affirm or to deny any speculative doctrine on this subject. It has been examined with great learning and ability by my predecessor, the late Hon. Henry Baldwin, in his opinion, in Magill v. Brown [Case No. 8,952] (the case of Sarah Zane's will), decided in 1S33, and more recently by Horace Binney, Esquire, in his argument at Washington, in Vidal v. Philadelphia [Id. 16,939]; both printed in pamphlet form. To those documents I would refer the persons who take an interest in the inquiry.

It is enough for the purposes of the present ease that these statutes would not make void a conveyance in mortmain, but only expose the land to forfeiture by the entry of the commonwealth. It is therefore a doctrine well settled in Pennsylvania, that a corporation has a right to purchase, hold and convey lands in this state without a license, until some act is done by the government, according to its own laws, to vest the estate in itself. The fact, therefore, that the license contained in the acts of incorporation limits the income of these corporations to $2,000, cannot affect the present question, as it does not avoid the devise in consequence of its being beyond the limits of the license. The legal estate passes by the gift or devise to the corporation, and is defeasible by the commonwealth alone. Leazure v. Hillegas, 7 Serg. & R. 313; Runnion v. Costar, 14 Pet. [39 U. S.] 122. The remedy therefore of the plaintiff should be by bill in equity, and not by ejectment. If, on the hearing of the case in equity, the court should be of opinion that the trusts limited on this devise are such as a chancellor would not execute, it will treat the devisees as trustees for the heirs at law or next of kin, and decree a conveyance- of the legal estate to them. Judgment accordingly.

2 This statute enacts (section 1) that no manors, lands, &c., nor money, &c., shall be given, &c., to charitable uses, unless by deed indented and executed before two witnesses, 12 months before the death of the donor, executed with certain formalities, and by § 3, that gifts, &c. “made in any other manner or form . . . shall be absolutely, and to all intents and purposes, null and void.”