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IX - The Influence of the Mortmain Act, 1736, on the Definition of Charity

Published online by Cambridge University Press:  07 October 2011

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Summary

The judiciary initiated and welcomed the Georgian mortmain statute. Yet they made little attempt to limit the class of objects which the law had hitherto deemed to be charitable, for the terms of the Mortmain Act, 1736, enabled them to protect the interests of the family by characterising the object of the testator's bounty as charitable. This had the immediate effect of avoiding the devise and causing the property to result to the heir or the next-of-kin. Thus, in Jones v. Williams in 1767, Lord Camden was asked to consider whether a bequest of £1,000, to be paid from the sale of land, for bringing spring water from St Arvans or elsewhere to the town of Chepstow for the use of the inhabitants for ever, was charitable. He held that it was, and that consequently it was void. Again in Turner v. Odgen a legacy payable out of land, for preaching a sermon on Ascension Day, for keeping the chimes of the church in repair, for the playing of certain psalms and for paying choristers was categorised as charitable and struck down; and in Townley v. Bedwell a devise of a mixed fund of realty and personalty to establish a perpetual botanical garden was avoided as being a devise to charity. Conversely, there is no reported case of a devise being saved from the Mortmain Act, 1736, by a finding that the particular public object was not charitable.

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Publisher: Cambridge University Press
Print publication year: 1969

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