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aforesaid so far as my interest or
control therein may appertain, and
to apply the rents for the mainte-
nance of my brother George W. Mc-
Cartney, pay the taxes and improve-
ments, if need be, secure the amount
for any deficiency of fund necessary
to meet these items by loan against
my interest in the said estate in this
item of this my will above de-
scribed." Item 4 directed the execu-
tor to sell, within one year after
testatrix's death, a 40-acre tract of
land described, which was her sole
property. Preference was given
testatrix's brother Andrew to buy
said land within six months, if he
desired, for the price of $200 per
acre. In case he should not buy it
within that period the executor was
directed to sell it at private sale for
the best price obtainable. The mon-
ey derived from the sale, after the
debts and funeral expenses and be-
quests were paid, was directed to be
distributed equally among the heirs
of testatrix. The executor was
given full power and authority to
execute necessary deed to convey
to the purchaser title in fee simple.
Andrew J. McCartney did not exer-
cise his option to buy the land, and
the executor sold it for $210 per

acre.

shall be buried. The objections al-
leged in the bill to item 3 are that
it is indefinite and uncertain, in that
it cannot be known whether George,
in order to receive the maintenance
provided, shall be required to stay
at the Lake Geneva Sanitarium the
remainder of his life, or whether.
if removed to some other institution,
the maintenance will be forfeited,
and whether, if a loan is made, it
shall be upon the whole of said lands
or upon the undivided interest of
George.
George. The bill makes inquiry
whether item 3 creates a valid trust
in the property, and whether, if it
does, it is a trust in the life estate
only of George and the interest of
the testatrix in fee if necessary for
the maintenance of George, and
whether said item is null and void.
because of uncertainties and insuf-
ficiencies. The bill alleges under
item 4 it is uncertain whether the
complainants, as heirs or devisees of
the testatrix, have the right, if all
concur, to take, subject to debts and
charges, the 40 acres of land direct-
ed to be sold and the proceeds di-
vided, or whether the land must be
sold, and whether the executor,
without a specific devise to him of
the title, has power to convey the
land in fee simple, or whether the
power of sale is void and the title de-
scended to the heirs under the laws
of descent.

The bill charges that the $200 bequest in item 2 to the cemetery association, which was unincorporated, in trust, the interest to be used in taking care of the burial lot of John D. McCartney, who was the father of testatrix, was in violation of the rule against perpetuities; that the provision in said item for markers for the graves of testatrix and her brother George, at a cost of not less than $75 each, is uncertain and indefinite, and leaves it to the discretion or whim of the executor to unnecessarily spend and dissipate the money of the estate; also it is alleged said provision is void because it is uncertain, now or in the future, about where George will be buried, as he owns no lot in the cemetery mentioned, and the testatrix did not have legal power or authority to designate where he

Harry E. Jacobs, in his capacity both as trustee and executor, the United Presbyterian Cemetery Association of the town of La Prairie, and the individual members of said association, were made defendants to the bill. After answer and replication were filed the cause was referred to the master in chancery to take the proofs and report his conclusion. Before the master had completed taking testimony, and made his report defendants filed an amended answer, and Henry E. Jacobs, as executor and testamentary trustee, filed a cross bill, praying that he be appointed trustee as provided in and by the will of Isabelle McCartney. Defendants to the cross bill and the guardian ad

less than $75 each, are that it is
uncertain and indefinite, and it is
left to the uncontrolled power of the
executor to dissi-
pate the money and for markers-
funds of the estate

Will-bequest

certainty.

in providing the markers. The circuit court correctly held that the county court had jurisdiction and power to control the amount of money expended for the markers.

As to item 3 the court properly decreed that it was the intention of the testatrix to, and said item did, create a valid trust of the rents and profits of the inter

(— IU. 123 N. E. 557.) litem for George W. McCartney, insane defendant, answered, and the cause was re-referred to the master. The master reported, recommending a decree denying the relief prayed by complainants in their original bill except as to the $200 bequeathed to the cemetery association and the provision for markers for the graves of testatrix and her brother George in item 2, which he recommended be decreed to be null and void. The court entered a decree in accordance with the report and recommendation of the master, except the court decreed the provision for markers for the graves of testatrix and her brother George was valid, that the county court had jurisdiction and authority to control the amount expended for the markers, and that said provision was not subject to the objection alleged in the bill. The only relief granted complainants by the decree was the holding that the bequest of $200 to the cemetery association was void. The court decreed that by item 3 it was intended to create a trust of the rents and profits from the interest of testatrix in the land described for the purpose of caring for her insane brother, and that a trustee should be appointed to carry out that provision of the will, and Henry E. Jacobs was appointed such trustee and required to give bond in the sum of $5,000.

Defendants have assigned cross errors on the part of the decree holding the bequest to the cemetery association void. Bequests to similar associations for the perpetual care Perpetuitybequest to main- held to violate the tain burial lots. rule against perpetuities, and to be therefore void, in Mason v. Bloomington Library Asso. 237 Ill. 442, 86 N. E. 1044, 15 Ann. Cas. 603, and Burke v. Burke, 259 Ill. 262. 102 N. E. 293. The association was never incorporated, and therefore was incapable of taking under the Act of 1911. Hurd's Rev. Stat. 1917, chap. 21, § 31a.

of burial lots were

The objections to the bequest for markers for the graves of testatrix and her brother George, to cost not

Trust-direction

est of the testatrix for caring for
insane person.
in the 240 acres of
land for the purpose of caring for
the insane brother

of trustee.

during his life, and appointment
a trustee was prop-
erly appointed to carry out said pro-
vision.

Will-income

devise of proceeds of real

estate-election.

As to the fourth item, which directs the sale by the executor of a 40-acre tract of land and the distribution of the proceeds among the heirs, the objection is that it is uncertain whether, if all the heirs and devisees concurred, they could elect to take the land subject to the charges and indebtedness. Whether they could have elected to take the land or not, they never attempted to make any such election. By their bill they did not offer to elect, but merely asked the court whether they had such right. If the court had decreed they had such right, it would have been optional with them whether or not they would exercise it. Furthermore, the insane heir and devisee was not capable of electing. Any election on his behalf would have been required to have been made by the court. No prayer of that kind was contained in the bill, and if there had been, it seems quite clear the court would not have been warranted in electing for the insane heir to take

Election-by the land. To au- insane person. thorize such elec

tion it must clearly appear to be for

the best interests of the insane heir. Gorman v. Mullins, 172 Ill. 349, 50 N.E. 222.

The wishes and intentions of the testatrix are expressed in her will in language easily understood, and, except the bequest to the cemetery as

sociation, none of its provisions are contrary to any rule of law or against public policy.

The decree of the Circuit Court is affirmed.

Stone, J., took no part in this

case.

ANNOTATION.

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

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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, 65 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 bestowed upon the burial lot or grave of the testator or some other individual therein (see

IV. Effect of statutory provisions, 1127. V. Precatory provisions; bequests on condition of maintenance of burial place, 1128.

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, a 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 v. Esterhazy (1897) 25 Wash. L. Rep. 478.

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Lake Burial Asso. (1910) 170 Mich. 645, 129 N. W. 36, 137 N. W. 513.

New Jersey.-Detwiller v. Hartman (1883) 37 N. J. Eq. 347; Hartson v. Elden (1893) 50 N. J. Eq. 522, 26 Atl. 561; Moore v. Moore (1892) 50 N. J. Eq. 554, 25 Atl. 403; Re Corle (1901) 61 N. J. Eq. 409, 48 Atl. 1027; Van Syckel v. Johnson (1908) 80 N. J. Eq. 117, 70 Atl. 657; Hilliard v. Parker (1909) 76 N. J. Eq. 447, 74 Atl. 447.

New York. Read V. William (1891) 125 N. Y. 560, 21 Am. St. Rep. 748, 26 N. E. 730; Re Fisher (1889) 2 Connoly, 75, 8 N. Y. Supp. 10; Re De Witt (1906) 113 App. Div. 790, 99 N. Y. Supp. 415, affirmed without opinion in (1907) 188 N. Y. 567, 80 N. E. 1108; Driscoll v. Hewlett (1909) 132 App. Div. 125, 116 N. Y. Supp. 466, affirmed in (1910) 198 N. Y. 297, 91 N. E. 784; Re Waldron (1907) 57 Misc. 275, 109 N. Y. Supp. 681.

Pennsylvania.-Methodist Episcopal Church v. Gifford (1888) 5 Pa. Co. Ct. 92.

Rhode Island.-Kelly V. Nichols (1892) 18 R. I. 62, 19 L.R.A. 425, 25 Atl. 840; Sherman v. Baker (1898) 20 R. I. 446, 40 L.R.A. 717, 40 Atl. 11; Rhode Island Hospital Trust Co. v. Warwick (1909) 29 R. I. 393, 71 Atl. 644.

Tennessee.-Hornberger v. Hornberger (1874) 12 Heisk. 635.

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England. Durour V. Motteux (1749) 1 Ves. Sr. 321, 27 Eng. Reprint, 1057; Lloyd v. Lloyd (1852) 2 Sim. N. S. 255, 61 Eng. Reprint, 338, 21 L. J. Ch. N. S. 596, 16 Jur. 306; Rickard v. Robson (1892) 31 Beav. 244, 54 Eng. Reprint, 1132, 8 Jur. N. S. 655, 31 L. J. Ch. N. S. 897, 7 L. T. N. S. 87, 10 Week. Rep. 657; Fowler v. Fowler (1864) 33 Beav. 616, 55 Eng. Reprint, 507, 10 Jur. N. S. 648, 33 L. J. Ch. N. S. 674, 10 L. T. N. S. 682, 12 Week. Rep. 972; Hoare v. Osborne (1866) L. R. 1 Eq. 585, 12 Jur. N. S. 243, 35 L. J. Ch. N. S. 345, 14 L. T. N. S. 9, 14 Week. Rep. 383; Fisk v. Atty. Gen. (1867) L. R. 4 Eq. 521, 17 L. T. N. S. 27, 15 Week. Rep. 1200; Hunter v. Bullock (1872) L. R. 14 Eq. 45, 41 L. J. Ch. N.

S. 637, 26 L. T. N. S. 349, 20 Week. Rep. 460; Dawson v. Small (1874) L. R. 18 Eq. 114; Re Williams (1877) L. R. 5 Ch. Div. 735, 47 L. J. Ch. N. S. 92, 36 L. T. N. S. 939, 25 Week. Rep. 689; Re Birkett (1878) L. R. 9 Ch. Div. 576, 47 L. J. Ch. N. S. 846, 27 Week. Rep. 164, 39 L. T. N. S. 418; Re Vaughan (1886) L. R. 33 Ch. Div. 187, 51 J. P. 70, 55 L. T. N. S. 547, 35 Week. Rep. 104; Re Jones (1898) 79 L. T. N. S. 154; Re Rogerson [1901] 1 Ch. 715, 70 L. J. Ch. N. S. 444, 84 L. T. N. S. 200; Re Barker (1909) 25 Times L. R. 753.

Ireland.-Toole v. Hamilton [1901] 1 Ir. R. 383.

Canada.-Re Jones (1918) 42 Ont. L. Rep. 62.

A provision for a trust for the purpose of keeping a private burial plot in order is not rendered valid by a direction that any surplus shall be applied to the general maintenance of the cemetery. Hartson V. Elden (1893) 50 N. J. Eq. 522, 26 Atl. 561; Re Corle (1901) 61 N. J. Eq. 409, 48 Atl. 1027; Van Syckel v. Johnson (1908) 80 N. J. Eq. 117, 70 Atl. 657; Hilliard v. Parker (1909) 76 N. J. Eq. 447, 74 Atl. 447; Methodist Episcopal Church v. Gifford (1888) 5 Pa. Co. Ct. 92.

And a bequest of a sum of money to be invested as a perpetual fund and so much of the income thereof as shall be necessary to be applied in keeping in good order certain burial lots is invalid, although the remainder of the income is to be devoted to a charitable purpose. "A little charity in such a case cannot preserve the entire bequest." Coit v. Comstock (1884) 51 Conn. 352, 50 Am. Rep. 29; Van Syckel v. Johnson (1908) 80 N. J. Eq. 117, 70 Atl. 657; Hunter v. Bullock (1872) L. R. 14 Eq. (Eng.) 45, 41 L. J. Ch. N. S. 637, 26 L. T. N. S. 349, 20 Week. Rep. 460; Dawson v. Small (1874) L. R. 18 Eq. (Eng.) 114.

Such a bequest is not protected by a provision for its forfeiture if the condition as to keeping the burial lot in order is not observed, since there may not be a forfeiture within a thousand years. Coit v. Comstock (Conn.) supra.

The obligation imposed by a bequest for a valid charitable purpose, of keeping a private burial place in repair, is merely honorary. Fisk v. Atty. Gen. (1867) L. R. 4 Eq. (Eng.) 521, 17 L. T. N. S. 27, 15 Week. Rep. 1200; Hunter v. Bullock (1872) L. R. 14 Eq. (Eng.) 45, 41 L. J. Ch. N. S. 637, 26 L. T. N. S. 349, 20 Week. Rep. 460; Dawson v. Small (1874) L. R. 18 Eq. (Eng.) 114.

A charge upon testator's real estate for the purpose of keeping his burial lot in repair, not being for a charity, is inoperative because not vested in anyone. Methodist Episcopal Church v. Gifford (1888) 20 Pa. Co. Ct. 92.

is a part of the fabric of a church; and so, being equivalent to a bequest in trust to keep the church in repair, is within the exception to the rule against perpetuities which exists in the case of gifts to a charitable use. See Hoare v. Osborne (1866) L. R. 1 Eq. (Eng.) 585, 12 Jur. N. S. 243, 35 L. J. Ch. N. S. 345, 14 L. T. N. S. 9, 14 Week. Rep. 383; Re Rigley (1867) 36 L. J. Ch. N. S. (Eng.) 137, 15 L. T. N. S. 499, 15 Week. Rep. 190; Re Barker (1909) 25 Times L. R. (Eng.) 753.

The view that a bequest in trust for the perpetual maintenance of a private burial place is invalid is opposed only by a dictum in Chapman v. Newell (1910) 146 Iowa, 415, 125 N. W. 324, in which the court intimates its disapproval of the cases which hold that a trust for the maintenance of the donor's own burial place is invalid; and by a decision of the superior court of Delaware, in Methodist Episcopal Church v. Williams (1915) 6 Boyce (Del.) 62, 96 Atl. 795, in which a bequest of bank stock in trust to the trustees of a church to apply the income to the maintenance of "our burial lot" was held valid in a brief per curiam opinion, no reason being given. And see Buchanan v. Kennard (1911) 234 Mo. 117, 37 L.R.A. (N.S.) 993, 136 S. W. 415, Ann. Cas. 1912D, 50, in which the court, in holding that the validity of a bequest for a charitable purpose was not affected by a charge of the maintenance of the donor's burial lot upon the plot bequeathed, said: "These bequests are not commingled with the purpose of the bequest for the hospital. They are merely charges upon the fund bequeathed to the trustees for the purpose of the principal charity, and their only effect is to diminish the available funds to that extent;" but expressed no opinion as to the validity of such charge.

II. Provisions for maintenance during a limited time.

In England, an exception to the general rule has been made where the tomb or monument directed in the particular instance to be kept in repair

The objection to the validity of a testamentary provision for the upkeep of a cemetery lot, based upon the rule against perpetuities, of course disap-. pears where the trust is to continue only during a life or lives in being at its creation. See Angus v. Noble (1900) 73 Conn. 56, 46 Atl. 278; Leon. ard v. Haworth (1898) 171 Mass. 496, 51 N. E. 7; Hornberger v. Hornberger (1874) 12 Heisk. (Tenn.) 635; Lloyd v. Lloyd (1852) 2 Sim. N. S. 255, 61 Eng. Reprint, 338, 21 L. J. Ch. N. S. 596, 16 Jur. 306.

But a testamentary direction for the expenditure of a sum of money in keeping testatrix's burial plot in good condition is not rendered valid by a direction that the expenditure shall be made "within the time prescribed by the statute governing perpetuities," as the limitations authorized by statute are based upon a life or lives, and not at all upon time. Re Fisher (1889) 2 Connoly, 75, 8 N. Y. Supp. 10.

In Re Koppikus (1905) 1 Cal. App. 84, 81 Pac. 732, a testamentary request that the burial lot of testatrix be cared for and kept in order for at least twenty years after her death was held to be too indefinite ever to be enforced. III. Provisions authorizing an imme. diate expenditure.

A testamentary provision directing an immediate expenditure of money for the purpose of erecting a monument or fencing, or otherwise putting a burial place in repair, is not invalid as creating a perpetuity. See

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

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