the same with the general perpetuity fund of the Company, and other funds of like character, and to apply the income therefrom from time to time, under the direction of the Board of Man "A part of the money paid by the purchase of lots is set aside as a perpetuity fund-the same as it accrues will be invested in good securities, and the interest and income thereof will be applied to the general maintenance of the Ceme-agers, to the care and improvement of tery forever." As the contract is to preserve the cemetery, the appurtenances to the cemetery, the buildings in the cemetery, the enclosures in the cemetery, the roads of the cemetery, the walks in the cemetery, and the grounds belonging to the cemetery, and every foot of ground belongs to the cemetery, it would seem as if about every cemeterial condition had been provided for that a sane person might hope for. The Company's rules are cyclopedic. Among them will be found the following: "Visitors will observe such a line of deportment as to cause the sacredness of the place to be fully appreciated by those who have friends within its enclosures." "Children without caretakers can not be admitted." "Dogs are not allowed within the grounds; they injure the flowers and monuments." "Hitching-posts are provided for the accommodation of visitors in carriages." "All persons are prohibited from hunting, fishing or in any way disturbing the animals, fish, birds or fowls." Human vanity is a rich field in which to gamble. It is well known that many will grasp a chance to appear to be distinguished, and the Company gives such encouragement by submitting with its rules and regulations the following: "Articles of Agreement to Provide for Special Care of Lots. lot No. ... section in the Cemetery grounds of the said Greenwood Cemetery Company, and the surplus, if any, at the end of each year, to be placed in the general perpetuity fund, to be applied solely and exclusively to the repair and keeping in order of the said lot and the Cemetery grounds in general. "Provided. However, that the said Managers shall never be responsible for their conduct in the discharge of such trust except for lack of good faith and such reasonable diligence as may be required by any gratuitous agents, and provided, further, that the said Managers shall in no case be obliged to make any separate investment of the sum so given." While by such an agreement the Company obligates itself to do no more than what it had previously guaranteed by the covenant in the deed, it, nevertheless, is an alluring appeal. It may be said that the caption suggests "special" care of lots, but it will be noted that in the body of the agreement the "special" has been omitted. Yet a more tempting bait is offered. Knowing that many who are slow to part with their money while living, even for the pleasure of seeing special care given to the lot where they may be buried, are less averse to having their estates dissipated after they are dead, and being well aware of the fetish which impels the hope that their graves may be kept green, to such the Company gratuitously tenders the following form for bequests to it: "I give and bequeath to the Greenwood Cemetery Company the sum of Dollars, in trust, the annual income whereof shall be used to care for and improve my lot, and the surplus. if any, to care for and improve the grounds in general.” While in this form has not been incorporated the reservation in the "Agreement that the "managers shall in no case be obliged to make any separate in Arrangements can be made with the Cemetery Company to have flower beds planted, cultivated and taken care of at a certain price per year fixed upon by the Board of Managers, payable yearly in advance." vestment of the sum so given," the secre- | shrubbery or bushes of any kind allowed tary of the Company has testified that it to be planted on the lots. does not so invest nor does it report bequests received by it to the Court of Common Pleas and obtain its approval of investments, as is required by the Act of May 16, 1891, P. L. 88, which gave the power to cemetery companies to accept trusts. It will also be seen that the form for a bequest provides 'that the "surplus" may be used to improve the grounds in general," which is in direct violation of this Act. A bequest such as this is repugnant to the idea of charity, the reverse of lexicographers' and judges' definitions of it, but it is a charity by act of assembly. There is nothing to indicate that the testator had in mind the Company which now claims the legacy. Doubtless he contemplated selecting a site somewhere for his grave, but the fact that he provided for the "keeping in good order of the lot in which he might be buried rebuts the idea that he had in mind a site in a cemetery operated by a company which assesses before permitting burial a sum sufficient to yield interest enough to keep the lot in good order. And if he was a man of some refinement and had some appreciation of his wife's taste he might not have been attracted to a company whose board of directors claims to be highly endowed and possessed of power to condemn a monument selected to be erected to his memory which offends its artistic sensibility: and which has constituted itself a board of censors to pass upon even the epitaph chosen. Such vaunting vaunting superiority might have been distasteful to him. There is a rule of the Company, in addition to one which reserves to the managers the right to prevent the erection of monuments which to them may seem inartistic, prohibiting more than "one monument. . on a single plot, or upon any number of contiguous plots held by the same owner or owners with out special permission." To the testator the effect thus produced might have seemed about as artistic as the whitewashed pickets of a fence. Following are a few more of the rules: "Regulation 64. No trees, flowers, 65. Bills will be sent (and payable) sixty days before planting season, and if not paid within that time decorations will be discontinued unless other arrangements are made by the lot holders with the Cemetery Company." "When a monument or other erection shall become dilapidated the Superintendent shall notify the owner thereof, if he or she can be found, to repair the same, and on failure to repair within a reasonable time the corporation may make the repairing at the expense of the owner." "In extreme cases of dilapidation, either where the owner cannot be found or refuses to repair, the erection may be sold and the net proceeds used to place the plot in repair. It will be remembered that before one receives a deed from this Company he is assessed a sum the interest of which will be sufficient to keep the plot in repair, and also that by the covenant in the deed the Company so contracts to do, therefore, why this threat to put monuments up at auction? The owner will have passed long before then beyond this jurisdiction, and no doubt departed with the consolation that the deposit exacted by the Company was a guarantee against the desecration of his grave. What can be understood by this impious menace other than that the uninformed may be induced to contribute to the Company either while living under the "Agreement" or by will after death. This inference is strengthened by the argument that the money yielded by such gifts will be used for repairing monuments, and the contention that such service is not contemplated by the covenant for the "preservation of the Cemetery and its appurtenances in good order." Why are not the monuments appurtenances of the cemetery? An appurtenance is "that which be longs to something else; an adjunct; an | With this in mind it is not difficult to appendage; an accessory; something an- understand why a trust of the character nexed to another thing more worthy; in common parlance and legal acceptation, something belonging to another thing as principal, and which passes as incident to it, as a right of way, or other easement of land; a right of common to pasture, an outhouse, barn, garden, or orchard, to a house or messuage." Therefore, the preservation of the principal thing includes the incident, and from which in this case gravestones or monuments can not be separated; and usually general enclosures takes in that which is enclosed. The covenant specially provides also for "the support of the buildings," and there is no evidence of any other buildings in the cemetery than the monuments. A definition of building is that which is built; a fabric or edifice constructed." The monuments in this cemetery certainly have been built one stone on another and the foundations for them have been built of stone laid in cement . . . six feet deep." By the covenant in the deed the "preservation" and "support of buildings have been generally and specially provided for, and therefore there is no object for this trust. If it is possible for the Company to escape this construction of its covenant, it would not seem possible to put a construction on the testator's words which would shield his monument from the auctioneer's gibes, for he provides only for keeping in good order and repair the cemetery lot," which the Company admits it has covenanted to do. Therefore, another reason why there is no object for this trust. The Company attempts to smother both the letter and the spirit of its contract which it framed as it chose and exposes an attitude repugnant to the idea of a charitable use of this money if it should get it into its coffers. One of the most profound of modern philosophers has said that it requires centuries for a belief which exercises a directing influence to filter," that a vast majority of the members of the civilized family are to-day imbued with the thoughts of the seventeenth century. of this one has never been declared to be contrary to public policy. A little investigation will disclose large sums of money which have been accumulated by reason of such trusts, and which is not being used and which can not be used honestly for the purposes intended. The case at hand will serve as an illustration. No details seem to have been missed nor contingencies overlooked by this Company. The rules and regulations provide against the ravages of time: The foundations for gravestones are to be constructed by the Company at the expense of whomsoever may wish to have a stone erected; the foundations shall be six feet deep of stone laid in cement, and the work may not be done between December 1st and April 1st. The gravestones must be granite or marble, but all bases must be of granite squared sufficiently to allow them to rest upon the foundations in their proper positions, as no wedges will be allowed. Foot stones are prohibited, and head stones may not exceed three feet in height, two feet in width, and shall not be less than four inches in thickness. The gravestone or monument erected at the grave of the decedent is of granite, and an expert testified that it would last for ages. It is no hazard to say that this stone will be as .adamant for centuries. We have a photograph of a tombstone taken within the year which is said to be of what is commonly called soapstone, which it is believed was placed in 1702, and the inscription on it is legible. It is safe to speculate that the stone at the testator's grave will require no attention for two hundred years, and in the mean time what of the trust. Assuming that the fund will be properly conserved and the interest compounded, it will at the expiration of that time at four per cent. per annum amount to $1,600,000.00. What will become of it, who will get it? The amount of this trust fund is comparatively small. We have awarded again as many thousand as this is hundreds for a similar purpose. What will the like of such amount to in time? Why is it a wise policy to thus indulge our vanity? Millions of money have been | to the filing of the decree refused to acThere appears, thus tied up and many more will be, until appropriated. There is another reason why this trust should fall; one enunciated by the great jurist, Gibson, C. J., in Styer v. Frass, 15 Pa. 339: "When an event turns up which the testator had not contemplated, a court is compelled to inquire how he would have provided for it had it been foreseen-in short, to suppose an intention for him where he had none." What has turned up in this case? A Company not in the testator's mind, at least not named by him, asserts that it is his beneficiary; a Company which lays an assessment under pretense of meeting every cemeterial condition; a Company which for a consideration obligates itself to do more than the testator specified and which apparently would put a no more comprehensive interpretation upon his words than it has upon those of its own cept under the will. however, to be no reason why she should not enjoy all that is intended by it for a The widow of a childless husband. Cemetery Company is the only one opposing her claim and it has no standing, therefore, the decree will be accordingly reformed. Reformed Distribution. Speaking in Parables. "Pa, what is a retainer?" What you pudiate its obligation; a Company which the quarter you put in the gas meter becontract; a Company which seems to re-pay a lawyer before he does any work for you, my son." "Oh, I see. It's like fore you get any gas." There is nothing to show that the Company has not properly cared for the cemetery lots, and if it was left to us it would be as satisfactory to have our mortal remains there committed to mother earth as at any other place, but there are some who rebel against the edicts of the overrigtheous, and the testator would not have been unnatural if of that class. The exceptions are dismissed. Because to the widow was not given the benefit of the five thousand dollar provision of the Act of April 1, 1909, an exception has been filed. This exception in form is dismissed, because it was not shown that she was entitled to the benefits of the Act nor had she previous -Boston Transcript. Telling Her Age. Judge-What is your age, madam? some Judge-I want your exact age, please. How many months? Witness-One hundred and twenty. No Lawgivers. "Pa," said Johnny, who is a persistent knowledge seeker, "what is a law-giver?" "There ain't any such thing, Johnny," replied the old gentleman, who had been involved in considerable litigation in his time. "But this book says that somebody was was a great lawgiver," persisted the youngster. Then it's a mistake," rejoined the father. "Law is never given. It's retailed in mighty small quantities at mighty high figures." -Case and Comment. George Depew, Columbia. Lavina Lehman, Mount Joy Twp. Martin L. Harnish, East Lampeter. Tuesday, May 18, 1915. J. Diller Martin, Ephrata. Martin Reidenbaugh, Manheim Twp. Lemon B. Weidman, East Cocalico. Thursday, May 20, 1915. Christian Schnupp. E. Earl. Susan M. Evans (trust), Warwick. Opinion: Estate of Robert L. Eicholtz, deceased. Rule to pay interest and part of principal made absolute. |