During the feudal days of the 13th century, the first Statutes of Mortmain were enacted by King Edward I of England.1 These statutes aimed to preserve England’s revenues by preventing land from passing into the possession of the church. Possession of property by a corporation such as the church was known as “mortmain” or literally “dead hand.” Under the feudal system, taxes were generated when the ownership of land passed by inheritance. If an estate was owned by a religious corporation (that never died), these taxes were never paid. The Statutes of Mortmain were meant to re-establish the prohibition against donating land to the church for the purposes of avoiding these taxes.2
Hundreds of years later, many American jurisdictions enacted their own mortmain statutes sharing the traditional concern that excessive property ownership by religious organizations took property out of commerce.3 Even Matter of Rothko,4 the quintessential Surrogate’s Court decision concerning fiduciary self-dealing, had its beginnings with a New York mortmain statute. In his will, Mark Rothko effectively disinherited his children in favor of charitable bequests. The New York mortmain statute in effect at the time, Estate Powers and Trusts Law (EPTL) 5-3.3, allowed Rothko’s daughter to elect against the estate for her share of a 50 percent interest in the estate.5 This election gave the daughter standing to seek removal of the executors because of their self-dealing, and led to the important precedent set by the Court of Appeals.6
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