CEMETERIES.

vate.

EPITOME OF CASES.

Sec. 63. Legislative and corporate control of cemeteries. The purposes for which alone cemetery corporations. may be organized under our laws are public, rather than priLands acquired by such a corporation, and platted pursuant to the statute for cemetery purposes, the plat being recorded, and the land to some extent having been actually used for burials, are thereby dedicated to the purpose, exclusively, of the burial of the dead. After such dedication the corporation is without power, for reasons in which the public is concerned, to convey any of such lands, except for the exclusive purpose of burials, or to mortgage the same. Its mortgage is wholly void, and the doctrine of estoppel is not applicable to preclude the corporation from asserting its invalidity. Wolford v. Crystal Lake Cemetery Ass'n, 54 Minn. 440 (56 N. W. Rep. 56). The ownership of a lot in a cemetery, or license to inter therein, is subject to the police power of the state, and interments may be forbidden, and bodies already interred removed, by ordinance of the city, if authorized by act of the legislature. Humphrey et al. v. Bd. of Trustees Front St. Methodist Church, 109 N. C. 132 (13 S. E. Rep. 793). Citing, Presbyterian Church v. New York, 5 Cow. 538; Woodlawn Cemetery v. Everett, 118 Mass. 354; City Council v. Baptist Church, 4 Strob. 306; Coates v. New York, 7 Cow. 585; Cooley, Const. Law 595; Kincaid's Appeal, 66 Pa. St. 411; Richards v. Dutch Church, 32 Barb. 42; Page v. Symonds, 63 N. H. 17; 3 Lawson, Rights, Rem. Pr. § 1343. The legislature, in the exercise of its police power, can lawfully prohibit the use of lands for purposes of burial, when such lands are held by a municipal corporation. Mayor etc. of Newark v. Watson,

Rep. 487).

N. J. L.

(29 Atl.

Sec. 64. Construction of statutes and miscellaneeous notes. Mt. Hope Cemetery in the City of Boston having been purchased and improved by the city legislative authority, and which it holds, not only for the burial of poor persons, as required by statute, but with the right to make sales of burial rights to any person who may wish to purchase them, whether residents or non-residents, is not held by the city for purposes strictly public, but is held in its private or proprietary character; and a statute (Mass. Stat. 1889, ch. 265), requiring the City of Boston, without compensation, to transfer such cemetery to the corporation called "The Proprietors of Mt. Hope Cemetery," is unconstitutional. Mt. Hope Cemetery v. City of Boston, 158 Mass. 509 (33 N. E. Rep. 695; 35 Am. St. Rep. 515). In acquiring land for burial. purposes, and calculating the distance thereof from dwellings, not only the dwellings erected should be considered, but also such as may be erected. Vt. Rev. Laws, § 3210, applied. Camp v. Town of Barre, 66 Vt. 495 (29 Atl. Rep. 811). Cal. Pol. Code §§ 3105, 3106 construed. City of Stockton v. Weber et al., 98 Cal. 433 (33 Pac. Rep. 332). Conn. Gen. Stat. § 1871; Pub. Acts 1849, ch. 7, applied-condemnation of land for cemetery. Westfield Cemetery Ass'n. v. Danielson, 62 Conn. 619 (26 Atl. Rep. 345). Iowa Acts, 16th Gen. Assem. ch. 130, § 3; Iowa Code, § 476, construed -condemnation of lands for cemetery purposes. Barrett v. Kemp, Ia. (59 N. W. Rep. 76). Md. Act 1832, ch. 308, applied-power of trustees of a Catholic Church to acquire land for a cemetery. Gump v. Sibley, (28 Atl. Rep. 977). N. J. Act, March 5, 1850, (Pub. Laws 1850, p. 194,) applied-sale of lots by cemetery companiesright to proceeds. New York Bay Cemetery Co. v. Buckmaster et al., 49 N. J. Eq. 439 (24 Atl. Rep. 2). The heirs of a decedent at whose grave a monument has been erected, or the person who rightfully erected it, can recover damages from one who wrongfully injures or removes it, or by an injunction may restrain one who without right threatens to injure or remove it, and this though the title to the ground wherein the grave is, be not in the plaintiff but in another. Mitchell et al. v. Thorne, 134 N. Y. 536 (32 N. E. Rep. 10; 30 Am. St. Rep. 699).

Md.

CHARITABLE USES.

EPITOME OF CASES.

Sec. 65. Validity of devise for charity. A bequest for the "erection, creation, maintenance and endowment of a free public library" in a large city is a charitable bequest and therefore not subject to the rule against perpetuities. Crerar et al. v. Williams et al., 145 Ill. 625 (34 N. E. Rep. 467). Citing, Drury v. Natick, 10 Allen 176; Dascomb v. Marston, 80 Me. 223 (13 Atl. Rep. 888); Donohugh's Appeal, 86 Pa. St. 306; Heuser v. Harris, 42 Ill. 425. A bequest of the testator's residuary estate to trustee to sell the same for the establishment of a free public library, followed by a direction to them to organize a corporation to manage the same, does not constitute an executory devise, since the vesting of the bequest is not conditional upon the formation of the corporation. Crerar et al. v. Williams et al., 145 Ill. 625 (34 N. E. Rep. 467). A residuary clause in a will, which gives to trustees all of the testator's estate, real and personal, remaining after the payment of certain other bequests, to be expended by such trustees, at their discretion, only for "benevolent and charitable purposes," is not void for its generality and indefiniteness, nor because the word "benevolent" is used with the word "charitable" to express the testator's wishes. While a devise or bequest to trustees for such benevolent purposes as are not also charitable would be void, the two words, when coupled together in a testamentary gift, will be taken to mean no more than the word "charitable" implies, when used alone, and in a legal sense, unless a different construction is clearly established by other portions of the will. The purposes are to be both benevolent and charitable, and not benevolent, or liberal, or generous, merely. Fox v. Gibbs, 86 Me. 87 (29 Atl. Rep. 940).

A devise of a house directing the trustees to keep it open "for the reception and entertainment of ministers and others.

traveling in the service of truth" is held to be void on the ground that it was not for a public charity and there could be no resort to the doctrine of cy press. Kelly et al. v. Nichols et al., R. I. (25 Atl. Rep. 840; 19 L. R. A. 413). This is supported by Kelly et al. v. Nichols et al., 17 R. I. 306 (21 Atl. Rep. 906). A devise of land to a city for “ a home and place for the maintenance and education of poor children " was held valid. Barkley et al. v. Donnelly et al., 112 Mo. 561 (19 S. W. Rep. 305). It is held that a devise in trust to promote, aid and protect colored citizens in the enjoyment of their civil rights and directing the formation of a corporation for that purpose is valid. In re Lewis Estate, 152 Pa. St. 447 (25 Atl. Rep. 878).

A devise of land to trustees, to manage to the best advantage, expressing the preference for some educational purpose, leaving to the trustees the power to divert to any other charity should they deem it desirable, is void because too indefinite. Johnson v. Johnson, 92 Tenn. 559 (23 S. W. Rep. 114; 36 Am. St. Rep. 104; 22 L. R. A. 179). The court say: "Charitable uses are favored in courts of equity, and will be supported when the trust would fail for uncertainty, were it not for a charity. Dickson v. Montgomery, 1 Swan 348; Heiskell v. Chickasaw Lodge, 87 Tenn. 668 (11 S. W. Rep. 825; 4 L. R. A. 699). This court has no disposition to abridge this rule, or recede from it, in any way. A charity will always be upheld, where it is created in favor of a person having sufficient capacity to take as donee, or, if it be not direct to such person, where it is definite in its object, lawful in its creation, and to be executed by trustees. Franklin v. Armfield, 2 Sneed 305; Gass v. Ross, 3 Sneed 211; Cobb v. Denton, 6· Baxt. 235; Frierson v. Presbyterian Church, 7 Heisk. 683; Dickson v. Montgomery, 1 Swan 348. There is a broad distinction between a gift direct to a charity or charitable institutions already established, and a gift to a trustee, to be by him applied to a charity. In the first case the court has only to give the fund to the charitable institution, which is merely a ministerial or prerogative act; but in the latter case the court has jurisdiction of the trustee, as it has over all trustees, to see that he does not commit a breach of his trust, or apply the funds, in bad faith, to purposes foreign to the charity. 2 Perry,

Trusts,

719.

Hence, there must be either (1) a trustee capable of taking, and a definite legal purpose declared; (2) a trust so definite and well defined that it can be enforced and executed, if necessary, by a court of chancery."

Sec. 66. Perpetuation and control of trusts. Where one deeds land to trustees for educational purposes, with reversion to himself and heirs on a failure of trust, and after many years the buildings become dilapidated, and the trustees have no funds for repairs, or for carrying on the trust, such trustees have power to lease the land for a term of years to any one agreeing to erect buildings thereon, and to use them. solely for the purposes of the original trust. Trustees of Madison Academy v. Board of Education of Richmond, Ky. (26 S. W. Rep. 187). In case of a devise for charities, so long as the objects of the testator's bounty continue to exist, the trust should be perpetuated and the fund applied to their wants. Penick v. Thom's Trustee, 90 Ky. 665 (14 S. W. Rep. 830). Where a charitable use has been created by a deed containing a condition upon which the property may revert to the donor or his heirs, the legislature possesses no power to authorize such a diversion of the property as will destroy the reversionary interests of such donor or his heirs. Kelso v. Stigar et al., 75 Md. 376 (24 Atl. Rep. 18). The statute of 43 Eliz. in regard to charitable uses, is in force in Illinois. Crerar et al. v. Williams et al., 145 Ill. 625 (34 N. E. Rep. 467). Courts of equity in this country have jurisdiction of trusts for charitable and religious purposes independent of Stat. 43 Eliz. Halsey et al. v. Convention of the Prot. Epis. Church et al., 75 Md. 275 (23 Atl. Rep. 781). Where a religious society has founded an educational institution and thereafter a board of trustees is incorporated under a charter giving them power to hold the property and manage the school in all its affairs, such religious society is thereby divested of all title to the property and of the power of management, and although it may be empowered to fill the vacancies in the board of trustees of the corporation, this would not give it any title, legal or equitable, to the property. Trustees of Union Baptist Ass'n v. Huhn et al., Civ. App.

(26 S. W. Rep. 755).

Tex.