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aforesaid so far as my interest or shall be buried. The objections alcontrol therein may appertain, and leged in the bill to item 3 are that to apply the rents for the mainte- it is indefinite and uncertain, in that nance of my brother George W. Mc- it cannot be known whether George, Cartney, pay the taxes and improve in order to receive the maintenance ments, if need be, secure the amount provided, shall be required to stay for any deficiency of fund necessary at the Lake Geneva Sanitarium the to meet these items by loan against remainder of his life, or whether. my interest in the said estate in this if removed to some other institution, item of this my will above de- the maintenance will be forfeited, scribed.” Item 4 directed the execu- and whether, if a loan is made, it tor to sell, within one year after shall be upon the whole of said lands testatrix's death, a 40-acre tract of or upon the undivided interest of land described, which was her sole George. The bill makes inquiry property. Preference was given whether item 3 creates a valid trust testatrix's brother Andrew to buy in the property, and whether, if it

, said land within six months, if he does, it is a trust in the life estate desired, for the price of $200 per only of George and the interest of acre. In case he should not buy it the testatrix in fee if necessary for within that period the executor was the maintenance of George, and directed to sell it at private sale for whether said item is null and void the best price obtainable. The mon- because of uncertainties and insufey derived from the sale, after the ficiencies. The bill alleges under debts and funeral expenses and be- item 4 it is uncertain whether the quests were paid, was directed to be complainants, as heirs or devisees of distributed equally among the heirs the testatrix, have the right, if all of testatrix. The executor was concur, to take, subject to debts and given full power and authority to charges, the 40 acres of land directexecute necessary deed to convey ed to be sold and the proceeds dito the purchaser title in fee simple. vided, or whether the land must be Andrew J. McCartney did not exer- sold, and whether the executor, cise his option to buy the land, and without a specific devise to him of the executor sold it for $210 per the title, has power to convey the acre.

land in fee simple, or whether the The bill charges that the $200 be- power of sale is void and the title dequest in item 2 to the cemetery as- scended to the heirs under the laws sociation, which was unincorporat- of descent. ed, in trust, the interest to be used Harry E. Jacobs, in his capacity in taking care of the burial lot of

both as trustee and executor, the John D. McCartney, who was the United Presbyterian Cemetery Asfather of testatrix, was in violation sociation of the town of La Prairie, of the rule against perpetuities; that and the individual members of said the provision in said item for mark- association, were made defendants ers for the graves of testatrix and to the bill. After answer and repliher brother George, at a cost of not cation were led the cause was reless than $75 each, is uncertain and ferred to the master in chancery to indefinite, and leaves it to the dis- take the proofs and report his concretion or whim of the executor to clusion. Before the master had unnecessarily spend and dissipate completed taking testimony, and the money of the estate; also it is made his report defendants filed an alleged said provision is void be- amended answer, and Henry E. cause it is uncertain, now or in the Jacobs, as executor and testamenfuture, about where George will be tary trustee, filed a cross bill, prayburied, as he owns no lot in the ing that he be appointed trustee as cemetery mentioned, and the testa- provided in and by the will of Isatrix did not have legal power or belle McCartney. Defendants to authority to designate where he the cross bill and the guardian ad

insane person.

(- Ni.

123 N. E. 557.) litem for George W. McCartney, in- less than $75 each, are that it is sane defendant, answered, and the uncertain and indefinite, and it is cause was re-referred to the master. left to the uncontrolled power of the The master reported, recommending executor to dissi

Will-bejuest a decree denying the relief prayed pate the money and for markersby complainants in their original funds of the estate certainty. bill except as to the $200 bequeathed in providing the markers. The cirto the cemetery association and the cuit court correctly held that the provision for markers for the graves county court had jurisdiction and of testatrix and her brother George power to control the amount of monin item 2, which he recommended be ey expended for the markers. decreed to be null and void. The As to item 3 the court properly court entered a decree in accordance decreed that it was the intention of with the report and recommendation the testatrix to, and said item did, of the master, except the court de- create a valid trust of the rents and creed the provision for markers for profits of the inter

Trust-direction the graves of testatrix and her est of the testatrix for caring for brother George was valid, that the in the 240 acres of county court had jurisdiction and land for the purpose of caring for authority to control the amount ex- the insane brother pended for the markers, and that during his life, and of trantee.

-appointment said provision was not subject to a trustee was propthe objection alleged in the bill. The erly appointed to carry out said proonly relief granted complainants by vision. the decree was the holding that the As to the fourth item, which dibequest of $200 to the cemetery as- rects the sale by the executor of a sociation was void. The court de- 40-acre tract of land and the discreed that by item 3 it was intended tribution of the proceeds among the to create a trust of the rents and heirs, the objection is that it is unprofits from the interest of testatrix certain whether, if all the heirs and in the land described for the pur- devisees concurred, they could elect pose of caring for her insane broth- to take the land subject to the er, and that a trustee should be ap- charges and indebtedness. Whether pointed to carry out that provision they could have elected to take the of the will, and Henry E. Jacobs was land or not, they appointed such trustee and required never attempted to devise of proto give bond in the sum of $5,000. make any such elec- ceeds of real

Defendants have assigned cross tion. By their bill errors on the part of the decree hold they did not offer to elect, but mereing the bequest to the cemetery as- ly asked the court whether they had sociation void. Bequests to similar such right. If the court had deassociations for the perpetual care creed they had such right, it would

of burial lots were Perpetuity

have been optional with them beqnest to main- held to violate the whether or not they would exercise tain burial lots.

rule against per- it. Furthermore, the insane heir petuities, and to be therefore void, and devisee was not capable of electin Mason v. Bloomington Library ing. Any election on his behalf Asso. 237 Ill. 442, 36 N. E. 1044, 15 would have been required to have Ann. Cas. 603, and Burke v. Burke, been made by the court. No prayer 259 Ill. 262, 102 N. E. 293. The as- of that kind was contained in the sociation was never incorporated, bill, and if there had been, it seems and therefore was incapable of tak- quite clear the court would not have ing under the Act of 1911. Hurd's been warranted in electing for the Rev. Stat. 1917, chap. 21, § 31a. insane heir to take

Election-by The objections to the bequest for the land. To au- insane person. markers for the graves of testatrix thorize such elecand her brother George, to cost not tion it must clearly appear to be for



the best interests of the insane heir sociation, none of its provisions are Gorman v. Mullins, 172 Ill. 349, 50 contrary to any rule of law or N. E. 222.

against public policy. The wishes and intentions of the The decree of the Circuit Court testatrix are expressed in her will in

is affirmed. language easily understood, and, ex- Stone, J., took no part in this cept the bequest to the cemetery as- case,


Devise or bequest for upkeep of cemetery lot as a violation of rule against

perpetuities. I. In general, 1124.

IV. Effect of statutory provisions, 1127. II. Provisions for maintenance during a

V. Precatory provisions; bequests on limited time, 1126. III. Provisions authorizing an immediate

condition of maintenance of burial expenditure, 1126.

place, 1128.


I. In general. While a perpetual trust to apply the income for the maintenance of a public cemetery is valid (see Hopkins v. Grimshaw (1897) 165 U. S. 342, 41 L. ed. 739, 17 Sup. Ct. Rep. 401; Johnson v. Holifield (1885) 79 Ala. 423, 58 Am. Rep. 596, obiter; Coit v. Comstock (1833) 51 Conn. 352, 50 Am. Rep. 29; Chapman v. Newell (1910) 146 Iowa, 415, 125 N. W. 324; Swasey v. American Bible Soc. (1869) 57 Me. 523; Dexter v. Gardner (1863) 7 Allen (Mass.) 243; Collector of Taxes v. Oldfield (1914) 219 Mass. 374, 106 N. E. 1014; Oldfield v. Atty. Gen. (1914) 219 Mass. 378, 106 N. E. 1015; Stewart v. Coshow (1911) 238 Mo. 662, 142 S. W. 283; Bliss v. Linden Cemetery Asso. (1913) 81 N. J. Eq. 394, 87 Atl. 224; Re Lyon (1916) 173 App. Div. 473, 159 N. Y. Supp. 951; Doe ex dem. Thompson v. Pitcher (1815) 3 Maule & S. 410, 105 Eng. Reprint, 665, 2 Marsh. 61, 6 Taunt. 359, 128 Eng. Reprint, 1074; Re Vaughan (1886) L. R. 33 Ch. Div. (Eng.) 187, 51 J. P. 70, 55 L. T. N. S. 547, 35 Week. Rep. 104; Re Manser [1905] 1 Ch. (Eng.) 68, 1 B. R. C. 923, 74 L. J. Ch. N. S. 95, 53 Week. Rep. 261, 92 L. T. N. S. 79; but see, contra, Knox v. Knox (1876) 9 W. Va. 124, which, however, is based upon grounds not now regarded as tenable), even though coupled with a special injunction as to the care to be estowed upon the burial lot or grave of the testator or some other individual therein (see

Collector of Taxes v. Oldfield (1914) 219 Mass. 374, 106 N. E. 1014; Re Manser [1905] 1 Ch. (Eng.) 68, 1 B. R. C. 923, 74 L. J. Ch. N. S. 95, 53 Week. Rep. 261, 92 L. T. N. S. 79, supra), it is very generally, although not universally, held that, in the absence of a statutory provision permitting the creation of a trust for such a purpose, à testamentary provision creating a perpetual trust to preserve and keep in repair the grave and monument of the testator or other named person is not for a charitable use, in the legal sense, and so is void for repugnancy to the rule against perpetuities.

Alabama. - Johnson v. Holifield (1885) 79 Ala. 423, 58 Am. Rep. 596.

California.-Re Gay (1903) 138 Cal. 552, 94 Am. St. Rep. 70, 71 Pac. 707.

Connecticut. - Coit Comstock (1884) 51 Conn. 352, 50 Am. Rep. 29.

District of Columbia.—Brown Esterhazy (1897) 25 Wash. L. Rep. 478.

Illinois.—Mason v. Bloomington Library Asso. (1909) 237 Ill. 442, 86 N. E. 1044, 15 Ann. Cas. 603, reversing (1908) 143 Ill. App. 39; Burke v. Burke (1913) 259 Ill. 262, 102 N. E. 293; MCCARTNEY v. JACOBS (reported herewith), ante, 1120.

Maine.-Piper v. Moulton (1881) 72 Me. 155.

Massachusetts. Bates v. Bates (1883) 134 Mass. 110, 45 Am. Rep. 305.

Michigan. - Lounsbury v. Square




Lake Burial Asso. (1910) 170 Mich. S. 637, 26 L. T. N. S. 349, 20 Week. 645, 129 N. W. 36, 137 N. W. 513. Rep. 460; Dawson v. Small (1874) L.

New Jersey.--Detwiller v. Hartman R. 18 Eq. 114; Re Williams (1877) (1883) 37 N. J. Eq. 347; Hartson v. L. R. 5 Ch. Div. 735, 47 L. J. Ch. N. S. Elden (1893) 50 N. J. Eq. 522, 26 Atl. 92, 36 L. T. N. S. 939, 25 Week. Rep. 561; Moore v. Moore (1892) 50 N. J. 689; Re Birkett (1878) L. R. 9 Ch. Eq. 554, 25 Atl. 403; Re Corle (1901) Div. 576, 47 L. J. Ch. N. S. 846, 27 61 N. J. Eq. 409, 48 Atl. 1027; Van Week. Rep. 164, 39 L. T. N. S. 418; Re Syckel v. Johnson (1908) 80 N. J. Eq. Vaughan (1886) L. R. 33 Ch. Div. 187, 117, 70 Atl. 657; Hilliard v. Parker 51 J. P. 70, 55 L. T. N. S. 547, 35 Week. (1909) 76 N. J. Eq. 447, 74 Atl. 447. Rep. 104; Re Jones (1898) 79 L. T. N.

New York. Read William S. 154; Re Rogerson (1901] 1 Ch. 715, (1891) 125 N. Y. 560, 21 Am. St. Rep. 70 L. J. Ch. N. S. 444, 84 L. T. N. S. 748, 26 N. E. 730; Re Fisher (1889) 200; Re Barker (1909) 25 Times L. R. 2 Connoly, 75, 8 N. Y. Supp. 10; Re De 753. Witt (1906) 113 App. Div. 790, 99 N. Ireland.-Toole v. Hamilton (1901] Y. Supp. 415, affirmed without opinion 1 Ir. R. 383. in (1907) 188 N. Y. 567, 80 N. E. 1108; Canada.-Re Jones (1918) 42 Ont. Driscoll v. Hewlett (1909) 132 App. L. Rep. 62. Div. 125, 116 N. Y. Supp. 466, affirmed A provision for a trust for the purin (1910) 198 N. Y. 297, 91 N. E. 784; pose of keeping a private burial plot Re Waldron (1907) 57 Misc. 275, 109 in order is not rendered valid by a N. Y. Supp. 681.

direction that any surplus shall be Pennsylvania.-Methodist Episcopal applied to the general maintenance of Church v. Gifford (1888) 5 Pa. Co. the cemetery. Hartson V. Elden Ct. 92.

(1893) 50 N. J. Eq. 522, 26 Atl. 561; Rhode Island.-Kelly v. Nichols Re Corle (1901) 61 N. J. Eq. 409, 48 (1892) 18 R. I. 62, 19 L.R.A. 425, 25 Atl. 1027; Van Syckel V. Johnson Atl. 840; Sherman v. Baker (1898) 20 (1908) 80 N. J. Eq. 117, 70 Atl. 657; R. I. 446, 40 L.R.A. 717, 40 Atl. 11; Hilliard v. Parker (1909) 76 N. J. Rhode Island Hospital Trust Co. v. Eq. 447, 74 Atl. 447; Methodist EpisWarwick (1909) 29 R. I. 393, 71 Atl. copal Church v. Gifford (1888) 5 Pa. 644.

Co. Ct. 92. Tennessee.--Hornberger Horn- And a bequest of a sum of money berger (1874) 12 Heisk. 635.

to be invested as a perpetual fund and Texas McIlvain V. Hockaday

so much of the income thereof as shall (1904) 36 Tex. Civ. App. 1, 81 S. W. be necessary to be applied in keeping 54.

in good order certain burial lots is England. Durour V. Motteux

invalid, although the remainder of the (1749) 1 Ves. Sr. 321, 27 Eng. Reprint,

income is to be devoted to a charitable 1057; Lloyd v. Lloyd (1852) 2 Sim. purpose. “A little charity in such a N. S. 255, 61 Eng. Reprint, 338, 21 L. case cannot preserve the entire beJ. Ch. N. S. 596, 16 Jur. 306; Rickard quest." Coit v. Comstock (1884) 51 v. Robson (1892) 31 Beav. 244, 54 Conn. 352, 50 Am. Rep. 29; Van

; Eng. Reprint, 1132, 8 Jur. N. S. 655, 31 Syckel v. Johnson (1908) 80 N. J. Eq. L. J. Ch. N. S. 897, 7 L. T. N. S. 87, 10 117, 70 Atl. 657; Hunter v. Bullock Week. Rep. 657; Fowler v. Fowler (1872) L. R. 14 Eq. (Eng.) 45, 41 L. (1864) 33 Beav. 616, 55 Eng. Reprint, J. Ch. N. S. 637, 26 L. T. N. S. 349, 20 507, 10 Jur. N. S. 648, 33 L. J. Ch. N. S. Week. Rep. 460; Dawson V. Small 674, 10 L. T. N. S. 682, 12 Week. Rep. (1874) L. R. 18 Eq. (Eng.) 114. 972; Hoare v. Osborne (1866) L. R. 1 Such a bequest is not protected by Eq. 585, 12 Jur. N. S. 243, 35 L. J. Ch. a provision for its forfeiture if the N. S. 345, 14 L. T. N. S. 9, 14 Week. condition as to keeping the burial lot Rep. 383; Fisk v. Atty. Gen. (1867) in order is not observed, since there L. R. 4 Eq. 521, 17 L. T. N. S. 27, 15 may not be a forfeiture within a Week. Rep. 1200; Hunter v. Bullock thousand years. Coit v. Comstock (1872) L. R. 14 Eq. 45, 41 L. J. Ch. N. (Conn.) supra.


The obligation imposed by a bequest is a part of the fabric of a church; for a valid charitable purpose, of keep- and so, being equivalent to a bequest ing a private burial place in repair, in trust to keep the church in repair, is merely honorary. Fisk v. Atty. is within the exception to the rule Gen. (1867) L. R. 4 Eq. (Eng.) 521, against perpetuities which exists in 17 L. T. N. S. 27, 15 Week. Rep. 1200; the case of gifts to a charitable use. Hunter v. Bullock (1872) L. R. 14 Eq. See Hoare v. Osborne (1866) L. R. (Eng.) 45, 41 L. J. Ch. N. S. 637, 26 1 Eq. (Eng.) 585, 12 Jur. N. S. 243, L. T. N. S. 349, 20 Week. Rep. 460; 35 L. J. Ch. N. S. 345, 14 L. T. N. S. Dawson v. Small (1874) L. R. 18 Eq. 9, 14 Week. Rep. 383; Re Rigley (1867) (Eng.) 114.

36 L. J. Ch. N. S. (Eng.) 137, 15 L. T. A charge upon testator's real estate N. S. 499, 15 Week. Rep. 190; Re Barkfor the purpose of keeping his burial er (1909) 25 Times L. R. (Eng.) 753. lot in repair, not being for a charity, is inoperative because not vested in

II. Provisions for maintenance during a

limited time. anyone. Methodist Episcopal Church v. Gifford (1888) 20 Pa. Co. Ct. 92.

The objection to the validity of a The view that a bequest in trust for

testamentary provision for the upkeep the perpetual maintenance of a pri

of a cemetery lot, based upon the rule vate burial place is invalid is opposed

against perpetuities, of course disaponly by a dictum in Chapman v. Newell

pears where the trust is to continue (1910) 146 Iowa, 415, 125 N. W. 324,

only during a life or lives in being at in which the court intimates its dis

its creation. See Angus v. Noble approval of the cases which hold that

(1900) 73 Conn. 56, 46 Atl. 278; Leon. a trust for the maintenance of the

ard v. Haworth (1898) 171 Mass. 496, donor's own burial place is invalid;

51 N. E. 7; Hornberger v. Hornberger and by a decision of the superior court

(1874) 12 Heisk. (Tenn.) 635; Lloyd v. of Delaware, in Methodist Episcopal

Lloyd (1852) 2 Sim. N. S. 255, 61 Eng. Church v. Williams (1915) 6 Boyce

Reprint, 338, 21 L. J. Ch. N. S. 596, 16 (Del.) 62, 96 Atl. 795, in which a be

Jur. 306. quest of bank stock in trust to the But a testamentary direction for the trustees of a church to apply the in- expenditure of a sum of money in come to the maintenance of "our keeping testatrix's burial plot in good burial lot” was held valid in a brief condition is not rendered valid by a per curiam opinion, no reason being

direction that the expenditure shall be given. And see Buchanan v. Kennard made "within the time prescribed by (1911) 234 Mo. 117, 37 L.R.A.(N.S.)

the statute governing perpetuities,” 993, 136 S. W. 415, Ann. Cas. 1912D,

as the limitations authorized by stat50, in which the court, in holding

ute are based upon a life or lives, and that the validity of a bequest for a

not at all upon time. Re Fisher (1889) charitable purpose was not affected by

2 Connoly, 75, 8 N. Y. Supp. 10. a charge of the maintenance of the

In Re Koppikus (1905) i Cal. App. donor's burial lot upon the plot be

84, 81 Pac. 732, a testamentary request queathed, said: “These bequests are

that the burial lot of testatrix be not commingled with the purpose of

cared for and kept in order for at least the bequest for the hospital. They are

twenty years after her death was held merely charges upon the fund be

to be too indefinite ever to be enforced. queathed to the trustees for the pur- III. Provisions authorizing an imme. pose of the principal charity, and their

diate expenditure. only effect is to diminish the availa

A testamentary provision directing ble funds to that extent;" but ex

an immediate expenditure of money pressed no opinion as to the validity

for the purpose of erecting a monuof such charge.

ment or fencing, or otherwise putting In England, an exception to the gen- a burial place in repair, is not invalid eral rule has been made where the

as creating a perpetuity. See tomb or monument directed in the par- Alabama. Johnson Holifield ticular instance to be kept in repair (1885) 79 Ala. 423, 58 Am. Rep. 596.

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