PARK AND CEMETERY. 
171 
LEGAL DECISIONS ON CEMETERY BEQUESTS— III. 
Bequests Conditioned on Care and 
Maintenance. 
Where the provision for care and 
maintenance is attached as a condition 
to a valid bequest, and does not re- 
quire any portion of the bequest to 
be held in trust for the purpose, it has 
been held to be valid; but the con- 
trary is the case where the effect of 
the provision is to create a perpetual 
trust. 
In Re Tyler (1891) 3 Ch. 252, 60 L. 
J. Ch. N. S. 686, 65 L. T. N. S. 367, 
40 Week. Rep. 7, where a testator 
gave a fund to the trustees of a cer- 
tain charity, and committed to their 
keeping the keys to his family vault, 
which was to be kept in good repair 
and to be rebuilt when it should re- 
quire, and went on to provide that, 
upon failure to comply with this re- 
quest, the money left should go to 
another charity, it was held that, 
there being nothing illegal about the 
condition itself, the testator not hav- 
ing required the first donee to apply 
any portions of the fund toward the 
repair of the tomb, and the rule 
against perpetuities having no appli- 
cation to a transfer in a certain event 
from one charity to another, the con- 
dition was valid and binding upon 
the legatee, notwithstanding the per- 
petual nature of the inducement to 
comply therewith. 
And see also to the same effect, 
Roche v. McDermott (1901) 1 1. R. 
394, post. 949. 
But in Giles v. Boston Fatherless & 
Widows’ Soc. (1865), 10 Allen, 355, 
where a gift had been made to a 
charitable society upon condition that 
it should keep the tomb of the tes- 
tator in repair, it was remarked that 
it might well be doubted “whether this 
condition to maintain a private tomb 
or burial place was not void as tend- 
ing to create a perpetuity;” but it was 
not thought necessary to decide the 
question, because if void, it did not 
defeat the gift, and if valid, it had 
been sufficiently complied with. 
The preceding case is quoted with 
approval in Piper v. Moulton (1881) 
72 Me. 155. There a testator, after 
making a bequest of a certain sum to 
the inhabitants of a town to hold in 
trust and expend the income as might 
be necessary to keep testator’s burial 
lot in good order and condition, and 
an iron fence around the same in good 
repair and painted, made a further be- 
quest to the town for a valid char- 
itable purpose, conditioned upon the 
acceptance and performance of the 
conditions named in the preceding ar- 
ticle of his will. The court, after 
holding the first-mentioned bequest 
void as not being for a charitable use 
for which a perpetuity might be cre- 
ated, held that the town took the sec- 
ond bequest clear of the condition. 
In Re Barker (1909) 25 Times L. R. 
753, where a testatrix bequeathed a 
sum of money to trustees to apply 1/3 
of the income thereof toward the 
maintenance of her son’s tomb, and 
the remaining 2/3 to other purposes, 
and further declared that such legacy 
was conditional upon the trust for the 
application of 1/3 of the net income 
to the upkeeping of said tomb being 
faithfully observed, it was held that 
while the gift of 1/3 of the income 
for keeping up the tomb was void as 
being a gift in perpetuity which was 
not charitable, the bequest of the re- 
Largely through the efforts of W. H. 
Foord, supt. Mt. Pleasant cemetery, 
Toronto, Ont., and F. H. Rutherford, 
supt. Flamilton cemetery, Hamilton, 
Ont., for several years past members of 
the A. A. C. S., interest has been aroused 
among Canadian cemetery officials in 
an organization that has been formed 
similar in character to the A. A. C. S. 
The first annual meeting of the As- 
sociation was held at St. George's Hall, 
Elm Street, Toronto, September 5th. 
There were twenty-two representa- 
tives present. A large number of letters 
were read from those unable to attend 
expressing approval and co-operation 
with the work and requesting member- 
ship. 
W. FI. Foord, Mount Pleasant cem- 
etery, Toronto, was unanimously elected 
chairman. It was voted that the name 
of the association be the Association of 
Cemetery Officials of Canada. Five 
members from those present were chos- 
en as an Executive Committee to draft 
Constitution and By-laws. Messrs. F. 
H. Rutherford, J. M. Cameron, W. H. 
Foord, W. H. Saunders and Cecil Be- 
thune were chosen for this committee. 
The fee for membership was fixed at 
one dollar, all members joining this 
year to be considered Charter Mem- 
bers. The regular membership fees and 
annual dues for future years was left 
to the Executive Committee. 
Then followed a discussion on “Back 
Dues” and “Sunday Interments” which 
was of great interest and enlighten- 
maining 2/3 of the income was not 
forfeited by the nonperformance of 
the condition, the testatrix having 
made it forfeitable only in the event 
of failure faithfully to observe the 
trust, and not in the event of the trust 
for keeping up the tomb failing be- 
cause it was contrary to a rule of law. 
Under the Code of Georgia of 1873, 
Sec. 3157, which provides: “The fol- 
lowing subjects are proper matters of 
charity for the jurisdiction of equity 
. provisions . . . for the 
improvement or repair of burying 
grounds or tombstones,” a devise to 
a church upon condition that its trus- 
tees should keep in good order tes- 
tator’s cemetery lot was held to be for 
a good charitable use. Jones vs. Haber- 
sham (1882) 107, U. S. 174, 27 L. Ed. 
401, 2 Sup. Ct. Rep. 336. 
To be continued. 
ment to several present. It was voted 
that the next annual meeting of the 
association be held at Hamilton, Ontario, 
the date to be fixed by the Executive 
Committee. The fees were then paid 
and the meeting adjourned. 
Then followed an executive meeting, 
at which W. H. Foord was elected 
President, F. H. Rutherford, Vice- 
president, and W. H. Saunders, Toronto 
Necropolis, 200 Winchester St., Toronto, 
Secretary-Treasurer. 
The Constitution and By-laws for the 
association were adopted at this meet- 
ing, subject to the ratification of the 
members at the next annual convention. 
St. Mary’s Cemetery Entrance. 
The view of the entrance to St. 
Mary’s cemetery, Marion, O., illus- 
trated on the front cover of Park and 
Cemetery this month gives a glimpse 
of attractive grounds and improve- 
ments recently made by the addition 
of 1,500 feet of iron fencing and orna- 
mental gateways. The fencing and 
gates were designed and built by The 
Stewart Iron Works Co., Cincinnati, 
O., specialists in improvements of this 
character. 
Cemetery inclosures when sub- 
stantial in construction and appro- 
priate in design provide, not only the 
protection such grounds should have, 
but by enhancing their appearance 
are an incentive to lot holders to do 
their part in keeping them up. 
CANADIAN CEMETERIES ORGANIZE 
