86 
THE MODERN CEMETERY. 
same sense as is the establishing and maintaining 
of roads or parks. The duty or power of doing 
this may properly be imposed or conferred upon 
towns, villages, or other political divisions of the 
state, as is done by the general laws defining the 
power of such municipal bodies; or, as has been 
done in Minnesota, the formation of corporations 
for that purpose may also be authorized. The pur- 
pose is equally public whether the one agency or 
the other is employed for its accomplishment, and 
in either case lands once legally devoted to and 
used for burial become appropriated to a public 
purpose, in such a sense that the power of the body 
in which the legal title may rest, to use or alienate 
the same, is restricted. The public character of 
such corporations, and of the purposes to be sub- 
served by them, as well as the general inalienabil- 
ity of lands legally dedicated to and used for 
burials, may be asserted, not merely because of the 
nature of the subject, but also in Minnesota (and in 
many other states) because the statute justifies it. 
Here no purpose of private gain or benefit is con- 
templated by the law, but only the accomplishment, 
through such corporate agencies, of the same pub- 
lic purposes which, in the absence of such a statute, 
or in the event of no such corporations being organ- 
ized, would generally be accomplished by the exer- 
cise of powers conferred upon towns, villages and 
cities. 
It is contrary to the policy of the law to allow a 
corporation to convey or alienate, except for burial 
purposes, any part of the land thus appropriated, in 
the manner prescribed by the statute, exclusively 
for the burial of the dead. Nor can an association, 
by its own act of alienation, divest itself of the trust 
which it has assumed under the law over the ceme- 
tery once established. Consequently this associa- 
tion was powerless, the court held, when the mort- 
gage referred to was executed, to sell without such 
restriction, or to mortgage a lot, or any number of 
lots, even to raise money for the payment of its 
debts, or to carry on its proper work. As it was 
wholly beyond the power of the corporation to thus 
mortgage its cemetery lands, so it could not validate 
or give legal effect to its void act by ratification, or 
by acceptance of benefits thereunder. Furthermore, 
the doctrine of estoppel was not applicable here, as 
it might have been if the corporation were one cre- 
ated for the accomplishment of private, rather than 
public purposes, or if the defect consisted only of 
some irregularity in the exercise of a power. The 
principle of estoppel could not be applied, so as to 
subject the public (not merely the corporation) to 
the very consequences which the restriction of the 
power of this public agent was intended to 
prevent. 
Validity of Statutory Authorized Bequest to Cemetery 
A ssociations. 
Such a statute as that of New York state author- 
izing the incorporation of rural cemetery associa- 
tions and providing that “Any association incorpo- 
rated pursuant to this act may take and hold any 
property, real or personal, bequeathed or given 
upon trust, to apply the income thereof under the 
direction of the trustees of such association, for the 
improvement or embellishment of such cemetery, 
or the erection or preservation of any buildings, 
structures, fences or walks, erected or to be erected 
upon the lands of said cemetery association, or upon 
the lots or plots of any of the proprietors; or for the 
repair, preservation, erection, or renewal of any 
tomb, monument, gravestone, fence, railing or 
other erection, in or around any cemetery lot or 
plot; or for planting and cultivating trees, shrubs, 
flowers, or plants, in or around any such lot or plot; 
or for improving or embellishing such cemetery, or 
any of the lots or plots in any other manner or 
form, consistent with the design and purposes of 
the association according to the terms of such grant, 
devise or bequest,” creates an exception to the stat- 
ute against perpetuities, which (in New York) pro- 
vides that “The absolute ownership of personal 
property shall not be suspended by any limitation 
or condition whatever for a longer period than dur- 
ing the continuance and until the termination of not 
more than two lives in being at the date of the in- 
strument containing such limitation or condition; 
or, if such instrument be a will, for not more than 
two lives in being at the death of the testator,” and 
makes such bequests valid. So holds the Surro- 
gate’s Court of Rockland County, in re Schuler’s 
Estate (24 N. Y. Supp.’ 847). It says that this 
statute against perpetuities is general, and applies 
to all cases, except where special provision is other- 
wise made. The same power that created the gen- 
eral prohibition can authorize an exception, and de- 
termine that the general provision shall not apply. 
The legislative power has prohibited generally such 
perpetuities, and the same power has, as to ceme- 
tery corporations, removed such restriction, and be- 
stowed affirmatively the power and right to hold 
funds for the purposes specified in this will, and it 
can see no reason why both should not stand with 
force, the latter as a statutory exception to the gen- 
eral law. This was an application by the Oak Hill 
Cemetery of Nyack, to compel the payment to its 
trustees by^he executors of the last will and testa- 
ment of John W. Schuler, deceased, of a bequest of 
$1,000, and interest thereon, pursuant to a direc- 
tion of the testator contained in his said will, the 
same to be invested only on first mortgage bond 
and mortgage on improved real estate of double the 
