PARK AND CEMETERY. 
253 
BEQUESTS FOR PUBLIC CEMETERIES OR MONUMENTS 
1 — In General. 
The distinction between a bequest in 
trust to apply the income for the benefit 
of a churchyard as a whole, as being 
for a charitable object, and one for the 
maintenance of a particular grave or 
graves therein, is pointed out in Re 
Vaughan (1886) 33 Ch. D. 187, 51 J. P. 
70, 55 L. T. N. S. 547, 35 Week. Rep. 
104, as follows : “It is said that keeping 
in repair the tombs in a churchyard is 
only the same thing as keeping in re- 
pair a tomb in the churchyard. I do 
not think so. A testator providing for 
the repair of a family tomb is only min- 
istering to his own private feeling or 
pride, or it may be to a feeling of af- 
fection he has for his own relations ; 
and it is not for the benefit of the parish 
at large that a particular tomb should 
be kept in repair. But in respect of the 
repair of the churchyard as a whole, 
it is for their benefit.” 
In Doe ex dem. Thompson v. Pitcher 
(1815) 3 Maule & S. 410, 2 Marsh. 61, 
6 Taunt. 359, a grant to trustees upon 
condition that a vault or tomb standing 
upon part of the land should be kept 
in repair, and should be permitted to be 
used as a family vault for the grantor 
and any of her family, was said by 
Lord Ellenborough to be for a charita- 
ble use so far as it concerned the inter- 
ment of the grantor’s family, although 
with regard to her own interment it 
was not. 
In Hopkins v. Grimshaw (1897) 165 
U. S. 342, 41 L. ed. 739, 17 Sup. Ct. 
Rep. 401, it is said that a grant for the 
maintenance of a churchyard or burial 
ground in connection with a church or 
religious society, or of a public burial 
ground, or a burial ground of all per- 
sons of a certain race, class, or neigh- 
borhood, might be considered as in the 
nature of a dedication for a pious and 
charitable use. 
In Chapman v. Newell (1910) — Iowa 
— , 125 N. W. 324, a testamentary gift 
for the maintenance of a public ceme- 
tery was sustained as being for a chari- 
table use, and therefore within the rec- 
ognized exception to the operation of 
the statute against perpetuities, the 
court saying : “That the providing and 
maintenance of a suitable place for the 
burial of the deal is one of public use 
and benefit is not open to question. A 
decent respect for the memory of the 
dead is a universal characteristic of 
civilized society. No depth of misfor- 
tune or poverty can deprive one of its 
members of the right to a grave, and a 
rule of law which would deny a gener- 
ous testator the right to establish a trust 
for such uses, and yet uphold a trust to 
pave a street, maintain waterworks, im- 
prove navigation, build bridges, main- 
tain churches and hospitals, would lack 
the elements of both reason and con- 
sistency.” 
In Johnson v. Holifield (1885) 79 
Ala. 423, 58 Am. Rep. 596, it is said that 
it may be that a bequest to maintain and 
keep in repair a public cemetery, though 
in perpetuity, would be sustained. 
Tn Swasey v. American Bible Soc 
(1869) 57 Me. 523, a testamentary pro- 
vision creating a trust “to keep in suit- 
able repair the Buck family burying 
ground, so called.” was held valid as 
creating a trust for a charitable use. 
A legacy to a religious society “for 
church in repair is one for a charitable 
use, within the meaning of a statute 
avoiding a bequest for religious and 
charitable purposes unless made at least 
one calendar month before the testator s 
decease. Ralston’s Estate (1882) 1 
Chester Co. Rep. 482. 
A beauest to a religious society is 
protected bv the statute of charitable 
uses, although one of its duties may be 
the keening in good order burial lots or 
cemeteries. Coit v. Comstock (1883) 
51 Conn. 352, 50 Am. Rep. 29. 
A legacy to a religious society “for 
its benefit” is not rendered void bv the 
fact that one of its purposes is the 
purchase and repair of burying grounds, 
where the society regards the providing 
and oversight of hurving grounds as a 
religious dutv, accompanying burials of 
the dead with religious services. Dexter 
v. Gardner (1863) 7 Allen, 243. 
A testamentary provision for the 
erection of a memorial monument or 
arch in a public nark and the construc- 
tion of a children’s playhouse and 
grounds, and for the maintenance and 
preservation thereof forever, has been 
held to be for a charitable use, where 
the monument would contribute to the 
beautification of the park, and serve to 
keep alive the spirit of patriotism and 
remembrance of the deeds of distin- 
guished men, whose statues were direct- 
ed to be placed thereon, notwithstanding 
the fact that the testator directed to be 
placed upon the main memorial column a 
bronze statue of himself, with his name 
underneath in large letters, and that the 
building to be erected should contain a 
memorial tablet. Smith’s Estate (1897) 
181 Pa. 109, 37 Atl. 114. Compare 
M’Caig v. Glasgow University (1907) 
S. C. 231, as digested in 1 News, Eng. 
Case Law Dig. Supp. p. 231, under T. 
supra. 
In Knox v. Knox (1876) 9 W. Va. 
124, where a testatrix gave her residu- 
ary estate to her executors in trust to use 
the income in maintaining and beauti- 
fying a certain cemetery, it was held 
that the statute of 43 Eliz., of ever in 
force, having been repealed in Virginia 
in 1792, charitable bequests stand on the 
same footing as others ; and that in the 
present case, the bequest being neither 
to nor in trust for the cemetery corpo- 
ration, it was void for want of a clearly 
ascertained beneficiary ; and it was fur- 
ther intimated that it was also void at 
common law as creating a perpetuity. 
The court based its conclusion that the 
bequest was void because, as a charity, 
it was indefinite and uncertain, largely 
upon the case of Gallego v. Atty. Gen. 
(1832) 3 Leigh, 450, 24 Am. Dec. 650, 
which is postulated upon the belief that 
an indefinite charitable bequest was un- 
enforceable at common law independent 
of the statute of 43 Elizabeth. But this 
belief has been demonstrated to be er- 
roneous. See Vidal v. Philadelphia 
(1844) 2 How. 127, 11 L. ed. 205, in which 
the Supreme Court, speaking through 
Mr. Justice Story, said: “But very 
strong additional light has been thrown 
upon this subject by the recent publica- 
tions of the commissioners on the pub- 
lic records in England, which contain a 
very curious and interesting collection 
of the chancery records in the reign of 
Queen Elizabeth, and in the earlier 
reigns. Among these are found many 
cases in which the Court of Chancery 
entertained jurisdiction over charities 
long before the statute of 43 Elizabeth ; 
and some fifty of these cases, extracted 
from the printed calendars, have been 
laid before us. They establish in the 
most satisfactory and conclusive man- 
ner that cases of charities where there 
were trustees appointed for general and 
definite charities as well as for specific 
charities were familiarly known to, and 
acted upon, and enforced in, the Court 
of Chancery. In some of these cases 
the charities were not only of an uncer- 
tain and indefinite nature, but, as far 
as we can gather from the imperfect 
statement in the printed records, they 
were also cases where there were either 
no trustees appointed, or the trustees 
were not competent to take.” 
2. As Affected by Statutory Provisions. 
A bequest of money on trust to apply 
the income toward the repairing and 
keeping in repair of a parish church- 
yard is good under the act of 43 George 
III., chap. 108, which authorizes gifts 
for or toward inter alia, the erecting, 
rebuilding, or repairing of any church- 
yard. 
