PARK AND CEMETERY. 
98 
CEMETERY LAW FROM COURT DECISIONS 
Bequest to Trustees for Care of Lot 
The supreme court of Illinois was 
called on to construe a will which con- 
tained the following clause: “(1) I 
direct, first, that all my lawful debts 
and funeral expenses shall be paid, and 
that the sum of $500 shall be placed 
in the hands of a proper person as 
trustee (John H. Russell, of Middle- 
town, Connecticut, being hereby em- 
powered to name and appoint such 
trustee), from which said sum of $500 
there shall be expended so much as 
such trustee shall consider necessary 
and proper for a monument at my 
burial place, and the residue of such 
sum of $500 shall by such trustee be 
put and kept at interest, and such in- 
terest shall be annually expended in the 
care of the family burial lot where I 
shall be buried.” 
The court says. Mason vs. Bloom- 
ington Library Association and others, 
86 Northeastern Reporter, 1044, that it 
was contended that this paragraph of 
the will created a perpetuity and was 
void, and that, the court erred in ap- 
pointing a trustee and in directing that 
the amount remaining of the $500 
mentioned in that paragraph, after the 
purchase of a monument, should be 
turned over to a trustee to be kept at 
interest ; the interest to be expended 
in the care of the family burial lot 
where the testatrix should be buried. 
The law is well settled in this coun- 
try that a perpetual trust cannot be 
created to take care of a private burial 
lot, unless the creation of such trust 
is authorized by statute. 6 Cyc. 918; 
5 Am. & Eng. Ency. of Law (2d Ed.) 
933; Bates vs. Bates, 134 Mass. 110; 
Coit vs. Comstock, 51 Conn. 352; John- 
son vs. Holifield, 79 Ala. 423 ; Hop- 
kins vs. Grimshaw, 165 U. S. 342. 
In Illinois, however, the legislature 
has provided (Hurd’s Revised Stat- 
utes of 1905, chapter 21, sections 22- 
28) that trusts may be created for such 
purpose in the hands of the boards of 
directors provided for by “An act to 
provide for the proper care and man- 
agement of county cemetery grounds” ; 
but there is no statute in this state 
which provides for the creation of 
such a fund in the hands of a private 
trustee. 
A trust created under a statute au- 
thorizing a trust to be created in per- 
petuity for the purpose of caring for 
and keeping in repair a cemetery, burial 
lot, a monument, is characterized by 
the court in Morse vs. Inhabitants of 
Natick, 176 Mass. 510, as a “statutory 
trust,” in contradistinction to a chari- 
table trust. The cases of Green vs. 
Hogan, 153 Mass. 462, and Jones v. 
Habersham, 107 U. S. 174, are not 
therefore in point. 
In Bates vs. Bates. 134 Mass. 110, 
the court said an examination of the 
authorities (and many cases are cited) 
“will show that it has been repeatedly 
held that a bequest to provide a fund 
for the permanent care of a private 
tomb or burial place could not be 
treated as a public charity, and thus 
made perpetual, and that such bequest 
would be void.” It was also pointed 
out in that case that there was in 
force in that state a statute similar to 
the statute in Illinois hereinbefore re- 
ferred to, but it was said “these statu- 
tory provisions have here no applica- 
tion.” 
In Coit vs. Comstock, 51 Conn. 352, 
it was said : “It has been held in nu- 
merous decisions that bequests for the 
purpose of keeping burial lots or cem- 
eteries ill good order or repair are not 
given in charity, and therefore are not 
protected by the statute of charitable 
uses.” And in John vs. Holifield, 79 
A*la. 423, it was said: “It seems to 
be well settled by the course of deci- 
sions that a bequest of money, the in- 
terest thereon to be perpetually ap- 
plied’ to preserving and keeping in re- 
pair the graves and monuments of the 
testatrix and other named persons, is 
repugnant to the rule against perpet- 
uities, and void.” 
This court would be glad to hold 
valid, where it possible so to do, the 
trust attempted to be created by the 
testatrix in this case by the first para- 
graph of her will. The court is, how- 
ever forced by the current and great 
weight of authority to hold that a 
trust like the one in question is not a 
gift to any public use, and that its pur- 
pose is purely private and secular. The 
court’s conclusion is therefore that the 
trust attempted to be created by the 
first paragraph of the will was void, 
and that the portion of the $500 men- 
tioned in that paragraph, remaining 
after the purchase of the monument, 
should be treated as a part of the resid- 
uary estate of the testatrix. 
Bequests to Religious Corporations 
The second appellate division of the 
supreme court of New York upholds, 
in the case of Driscoll vs. Hewlett, 116 
New York Supplement, 466, the valid- 
ity of an attempted devise and bequest 
of the testator’s residuary estate to a 
religious corporation in trust to apply 
the income to the care of his burial lot. 
In the absence of some statute au- 
thorizing such a trust, the attempt to 
create it, the court says, would doubt- 
less have been futile. The New York 
statute relating to gifts for public char- 
itable purposes had no application, as 
the care of the testator’s burial lot was 
not a charitable use. 
However, there is a New York stat- 
ute which^in terms authorizes the crea- 
tion of just such a trust as was at- 
tempted in this case, namely. New York 
Laws of 1895, chapter 723, section 7. 
That statute provides that a religious 
corporation may take and hold real 
property for the purposes of a cem- 
etery and “may take and hold any 
property granted, given, devised or be- 
queathed to it in trust to apply the 
same or the income or proceeds there- 
of, under the direction of the trustees 
of the corporation, for the improve- 
ment or embellishment of such cem- 
etery or any lot therein, including the 
erection, repair, preservation or re- 
moval of tombs, monuments, grave- 
stones, fences, railings or other erec- 
tions, or the planting or cultivation of 
trees, shrubs, plants, or flowers in or 
around any such cemetery or cemetery 
lots.” 
This statute was a re-enactment of 
section 2, chapter 198, of the Laws of 
1884, with slight verbal changes; the 
principal change being the omission of 
the following words at the end of the 
paragraph or section in question : “Or 
for improving the said premises in 
any other manner or form consistent 
with the design and purpose of this act, 
according to the terms of such grant, 
donation or bequest.” The trial jus- 
tice thought that the omission of those 
words indicated an intention on the 
part of the legislature to change the 
law, and, while authorizing a trust for 
the purposes specified, to require that 
the trust should not continue beyond 
two lives in being. But this court is 
unable to discern such a purpose, the 
words omitted appearing to be sur- 
plusage. 
Greenhouse Damaged by Sewer 
The appellate court of Indiana af- 
firms, on the appeal of City of Garrett 
vs. Winterich, 87 Northeastern Re- 
porter, 161, a judgment in favor of 
Winterich (the plaintiff in the court 
below) for damaged alleged to have 
been sustained by him through the neg- 
ligent and wrongful acts of the city in 
{Continued on page XI) 
