The Better Chancery Practice Blog

By: Donald Campbell

This is an unusual post.  It is about a 2023 case dealing with Mississippi’s Mortmain law – a law that was repealed in the early 1990’s.

Reverend Harvey McCool died on August 31, 1969, survived by his wife Maggie McCool.  In his will, he devised a mineral interest that he owned to the Mississippi Baptist Foundation (MBF), to be held in trust for his wife and his sister for their lives.  At the death of his wife and sister, the MBF was to use the property “for the use and benefit of Foreign Missions carried on by, under the auspices of, or participated in by, the Mississippi Baptist Convention.”

Maggie died on April 17, 1973, with a will leaving her property to 3 children from a previous marriage (including the mineral interest).  Reverend McCool’s sister died on February 5, 1986. 

In December 2019, MBF filed a complaint in Amite County Chancery Court to probate Reverend McCool’s will and confirm title to the mineral interest.  Because MBF was challenging the constitutionality of Mississippi’s Mortmain statute, the Attorney General, in addition to the heirs and successors of Maggie, were made parties to the suit. 

The case was assigned to Chancellor Debbra K. Halford.  The chancellor held that the Mortmain laws were constitutional, and that MBF was divested of any interest in the property in 1979 – ten years after the death of McCool. 

MBF appealed and the case (Mississippi Baptist Foundation v. Fitch, 359 So. 3d 171 (Miss. 2023)) was decided by the Mississippi Supreme Court on March 16, 2023.  The case was heard by a panel of Justices King, Chambelin, and Ishee.  Justice King wrote the opinion for a unanimous court affirming Chancellor Halford.

The outcome in this case turns on the validity of Mississippi’s Mortmain law.  These laws, which trace their origins to the Magna Carta, were designed to restrict the ability of organizations (explicitly including charitable and religious organizations) to hold property.  In Mississippi, Mortmain laws date back to 1857.   The 1890 constitution prohibited all testamentary devises to religious or ecclesiastical institutions.  By 1940, the Constitution had been amended to provide that no person could devise more than one-third of their estate to “any charitable, religious, educational or civil institutions to the exclusion” of certain heirs, and also included the following restrictions:  (1)  any devise, regardless of amount, was invalid if devised less than 90 days before the death of the testator; and (2) the organization could only hold the property for 10 years after the death of the testator, and if the organization had not sold the property within 10 years, it reverted back to the estate of the testator.  The loosening of the prohibition from 1890 to 1940 was to bring some balance – by continuing to protect against the concerns that the Mortmain law was designed to address while at the same time providing some ability for the testator to promote religious or charitable organizations.In 1987/1988 the Constitution and statute were amended again to make it clear that the ten year restriction begins to run “after such devise becomes effective as a fee simple or possessory interest.” 

Thereafter, in 1992/1993 the Mortmain law – both the Constitutional provision and the related statutes were repealed.

It was the 1940 version of the Mortmain law that was in effect at the time of Reverend McCool’s death.  Under that law, MBF could only hold the property in fee simple absolute for 10 years before it reverted back to Reverend McCool’s estate.  MBF argued that McCool’s will devised a life estate to Maggie and McCool’s sister, and that MBF did not acquire a fee simple absolute interest – triggering the 10 year limitation – until 1986 at the death of McCool’s sister.  And, MBF argued, since the Mortmain laws were repealed in 1992/1993 – their limitations did not apply when the 10 year reversion kicked in in 1996.  In addition, MBF argued, if the Mortmain statute did apply, it was unconstitutional.

In a Court of Appeals case from 2012 (Hemeter Properties, LLC v. Clark, 178 So. 3d 730 (Miss. Ct. App. 2012)), the court held that, where a legal life estate was left to family members, with a remainder interest to a charitable organization, the 10 year time frame did not start until the family members died because the organization could only sell the property with the right of possession after the family member’s death.

The Court noted that this case was not like Hemeter.  Here, the MBF owned the property as a trustee with the right to dispose of the property at any time (unlike Hemeter).  Therefore, because MBF had the right to dispose of the property at the death of Reverend McCool, the ten years to dispose of the property began running at Reverend McCool’s death in 1969.  MBF did not sell the mineral interest before 1979, therefore the property interest reverted to estate of Reverend McCool in 1979.

The Court refused to address MBF’s argument that Mississippi’s Mortmain law is unconstitutional – holding that MBF knew (or should have known) about the Mortmain statute issue at Reverend McCool’s death and waited more than 40 years to challenge the statute’s constitutionality. Therefore, MBF was barred both legally (under the statute related to claiming an interest in land) and equitably (failure to act timely to protect their rights) from making a constitutional argument.

Professor Thoughts

One thing I always tell my students in Wills & Trusts and Property Law classes is how far reaching their representation can be.  Mistakes in property transfers (either by deed or by will) may not be recognized until years later.  This case is certainly an example of that.  I only teach Mortmain statutes in passing, because they have been repealed or declared unconstitutional in almost all jurisdictions today.

Because a number of lawyers practicing today have probably never studied (or perhaps heard of) Mortmain laws, I thought a short discussion would be worthwhile. If nothing else, this should get you a point if this is the answer to a trivia question.

The Statutes of Mortmain were first enacted in the late 1200’s during the reign of Edward I.  The goal was to prevent land from passing into the hands of the church and out of the taxing authority of the crown.   This was the same justification for enactment of Mortmain laws in the United States – taking property permanently out of the stream of commerce and the taxing authority of the state.

This was not the only justification, however.  There was also the concern that a testator who is near death could be in a position to be unduly influence by charitable organizations – leveraging the testator’s fear of death to secure a bequest.  Hence, Mississippi’s 1940 version of the law which invalidated bequests made within 90 days of death. 

A final justification (and this is my favorite) is to prevent a testator who was not charitable during life to be charitable at death at the expense of their family.  Mississippi’s law reflected this by restricting the amount that could be devised to no more than one-third of the testator’s estate.

It might be worthwhile setting out the constitutional challenges to the Mortmain statute argued by MBF.  While the Supreme Court did not address these arguments, other states have invalidated their Mortmain statutes based on constitutional challenge. 

The essential argument is that Mortmain laws violate the Equal Protection Clause because they are not able to survive rational basis review.  Specifically, MBF’s brief argues that the purpose of the Mortmain laws are to prohibit the testator from being unduly influenced by the named organizations and they are not rationally related to that goal because:

1.  They do not take into account the susceptibility of the individual testator to undue influence or whether the testator was actually in their last illness at the time the bequest was made;
2. They do not take into account whether the testator has close family that need to be protected from overreach;
3. They do not take into account the fact that others are in “an equal position to improperly influence the testator, including lawyers, doctors, nurses, clergymen, caretakers, housekeepers, companions, and the like” and there is no reason to believe that religious or charitable organizations are more “unscrupulous than greedy relatives, friends, or acquaintances”;
4. The statutes do not address inter vivos gifts and non-charitable gifts that have the same potential for overreaching.

To the extent that a proper case comes forward, these arguments remain valid arguments against the Mortmain law.  It should be noted, however, that there are counter arguments. For example, the fact that the charity could sell the property within 10 years and not lose the value of the bequest could save the statute if a valid challenge is ever raised.