Newton v. Newton Burial Park, 28589.

• Decision Date: 20 December 1930
• Docket Number: No. 28589.,28589.
• Citation: 34 S.W.2d 118
• Parties: L.L. NEWTON ET AL., Appellants, v. NEWTON BURIAL PARK.
• Court: Missouri Supreme Court

34 S.W.2d 118

L.L. NEWTON ET AL., Appellants, v. NEWTON BURIAL PARK.

No. 28589.

Supreme Court of Missouri, Division Two.

December 20, 1930.

Appeal from Bates Circuit Court. — Hon. C.A. Calvird, Judge.

AFFIRMED.

Hiett, Lamar & Covert for appellants.

(1) The court erred in holding the Newton Burial Park to be a public charity. To be a public charity the park must be a public cemetery. (a) A public cemetery is a cemetery which is open to everybody desiring to bury therein. If it does not permit every member of the public to bury therein, it is a private cemetery. Kansas City v. Hyde, 196 Mo. 498; South Highland Land & Improvement Co. v. Kansas City, 172 Mo. 523; Kennedy v. Nevada, 281 S.W. 58; Tracey v. Bittle, 213 Mo. 302; Stewart v. Coshow, 238 Mo. 662; State ex rel. Attorney-General v. Schweickardt, 109 Mo. 510, (b) A public cemetery is a cemetery in which every member of the public in the community at least has a right to bury their dead; not as a mere favor by permission of the owner, but by right. Brown v. Gerald, 70 L.R.A. 482; Howard Mills Co. v. Lumber Co., 18 L.R.A. (N.S.) 362; Ozark Coal Co. v. Anthracite Co., 134 S.W. 636; Cleveland Railroad Co. v. Drainage District, 72 N.E. 684; Gaylord v. Sanitary District, 68 N.E. 587; City of Gary v. Much, 94 N.E. 587; Chesapeake Stone Co. v. Moreland, 104 S.W. 765; In re Opinion of Justices, 109 Am. St. 526; Ansperger v. Crawford, 70 L.R.A. 497; Board of Health v. Van Hoesen, 49 N.W. 896; Minnesota Power & Canal Co. v. Koochiching Co., 107 N.W. 413; Berrien Springs Water Power Co. v. Berrien Springs Judge, 94 N.W. 380. (c) A public cemetery under the law of this State is a cemetery which can exercise the right of eminent domain. Sec. 1088, R.S. 1919. (d) A public cemetery in this State must be a public use. Constitution, Art. 2, sec. 20. (e) The articles of agreement of defendant corporation exclude from being buried in its cemetery all people other than white people. It cannot be a public cemetery and exclude any part of the public. People ex rel. Gaskill v. Forest Home Cemetery, 101 N.E. 219; Memphis State Line Railroad Co. v. Forest Hill Cemetery Co., 94 S.W. 69. (f) The defendant corporation is by its articles of agreement and by-laws authorized to sell and does sell burial lots to private individuals at an agreed price. It has no fixed price for the same class of lots. It sells the same class of lots to people who desire the same at such price as it can procure by an individual bargain; hence, the defendant is neither a public graveyard nor a public charity, and this is true though it may use the entire proceeds of such sales for the purpose of maintaining, beautifying and ornamenting its cemetery. 5 R.C.L. 4, 237; Donnolley v. Boston Catholic Cemetery Assn., 15 N.E. 505; Board of Health v. Van Hoesen, 49 N.W. 896; In re Deans Cemetery Assn., 23 Am. Rep. 86; Haggarty v. Railroad Co., 100 Mo. App. 447; Tyree v. Bingham, 100 Mo. 461; Mason v. Bloomington Library Assn., 86 N.E. 1046; Chapman v. Newell, 125 N.W. 327; Holeman v. Renard, 141 Mo. App. 399; Shiel v. Walker, 114 Mo. App. 521; In re Board Street Opening, 28 Am. St. 640; Town of Millford v. Commissioners of Worchester, 100 N.E. 60. (g) The articles of agreement and by-laws of the defendant corporation require every one burying in its cemetery to buy a burial lot. The by-laws require every one burying in the cemetery to pay a burial fee in addition to buying a lot. Its by-laws provide that every one burying in its cemetery shall pay it $10 for a marker until a monument is erected and excludes marble, sand-stone and composition, the poor-man's tombstone, from being erected in its cemetery. Its by-laws also provide that if a burial lot is purchased and interment is made therein and the purchaser does not make full payment of the purchase price of the lot, the defendant can dig up the body so buried and place it in some other place in the cemetery designated by it and keep what has been paid on the lot as a forfeit. The by-laws and articles exclude a poor white person from being buried in its cemetery. "A public charity does not turn away the rich on account of their wealth nor the poor on account of their poverty." Buchanan v. Kennard, 234 Mo. 117, 139; Underhill on Wills (1 Ed.) 811, 1198; 11 C.J. 298, sec. 1. (2) The will provides that the defendant corporation should out of the money it received from the sale of the land in Texas County, build a chapel; after the building of the chapel the defendant should perpetually loan the remainder, and secure the loans by first mortgages on real estate, and use the interest thus derived in beautifying, ornamenting and maintaining its cemetery. The will creates both a trust and a perpetuity. Starks v. Lincoln, 291 S.W. 134; Bank v. Longfellow, 96 Mo. App. 385. In order to come within an exception to the rule against perpetuities, the trial court must have found the defendant to be a public charity; also, a public cemetery. (3) Under the common law a cemetery could only be benefited by a gift as an incident to a religious use. Death of the testator occurred in the year 1916. At that time there was no law authorizing a devise, gift or grant to a public cemetery.

M.T. January and W.M. Bowker for respondent.

(1) The rule against perpetuities deals only with the vesting of an estate and not with the time of beginning or duration of its enjoyment. If the estate vests in fee at once the rule does not apply. Normandy Consolidated School District v. Harral, 286 S.W. 86. (2) Any corporation formed under Art. 2, chap. 90, R.S. 1919 (Sec. 3438, R.S. 1909), may receive property in trust and execute the trust. Sec. 10270, R.S. 1919; Zollman American Law of Charities 374, sec. 542. (3) A corporation to operate a cemetery may be formed under said Article 2. Stewart v. Coshow, 238 Mo. 662. (4) Any corporation formed under said Article 2 has perpetual succession and is not limited to twenty years and may take in perpetuity. Stewart v. Coshow, 238 Mo. 662. (5) A cemetery association is a charitable trust. Stewart v. Coshow, 238 Mo. 662; Normandy Consolidated School District v. Harral, 286 S.W. 86; Zollman on "Charities," 372, sec. 540. (6) Unless the instrument creating the trust fund so provides, there can be no reverter, whether the fund be a gift or sale. Lewis v. Brubaker, 14 S.W. (2d) 982. (7) The dedication of a fund to build a chapel is a dedication to a pious or religious use. A chapel is a church. The rule against perpetuity does not apply to such a gift. Zollman on "Charities," 227, sec. 342. (8) A trust may be created in which the beneficiaries are limited to a class and it will still be a charitable trust as distinguished from a private trust, and as such exempted from the operation of the rule against perpetuities. The term "public trust" as applied to charities is a misnomer. Charitable trust is the proper term. Buckley v. Monck, 187 S.W. (Mo.) 31; Zollman on "Charities," 286, sec. 416; Robinson v. Crutcher, 209 S.W. 104. (9) Every charitable trust is a perpetuity; it is of the very nature of such a trust, and the law against perpetuities is not violated by conveyance to a charitable use. Stewart v. Coshow, 238 Mo. 662; Strothen v. Barrom, 246 Mo. 241; Buchanan v. Kennard, 234 Mo. 117.

BLAIR, P.J.

Action at law to recover $33,200. The action was instituted in Vernon County and was tried in the Circuit Court of Bates County upon change of venue. From a judgment for defendant (respondent here) the plaintiffs were granted an appeal to this court.

William A. Newton died testate, leaving as his widow, Alice F. Newton, who was his second wife. He had no children by either his first or second marriage. The appellants are his nephews and nieces. Alice F. Newton died before this action was instituted.

William A. Newton died seized of extensive real estate holdings. He owned a tract of land near Nevada, in Vernon County, comprising slightly more than thirty-six acres. On October 30, 1911, Newton conveyed this tract to certain persons as trustees for respondent, the Newton Burial Park. The recited consideration was one dollar and an agreement on the part of the Burial Park to deed him one block of ground to be selected by him after the cemetery was platted. The Burial Park previously had secured a pro-forma decree of incorporation from the Circuit Court of Vernon County, under the provisions of present Article 11, Chapter 90, Revised Statutes 1919. On January 30, 1912, the trustees conveyed said tract to the Burial Park, subject to the terms and conditions in the Newton deed of October 30, 1911. The articles of agreement of the Newton Burial Park recited that the corporation was organized to acquire the thirty-six-acre tract and to acquire such adjoining tracts as might be necessary "and to lay it out as a Burial Park for the burial of dead white people without regard to sex, nationality or religious belief. The lots are to be sold at a sum sufficient to pay the expenses of maintaining said Burial Park and no money derived therefrom shall be used as profits, but all income over expenses shall be devoted to improving and beautifying the grounds with driveways, shrubbery, flowers, etc., as may be suggested by the skill of the landscape gardner, subject to the approval of Board of Trustees." The Burial Park adopted by-laws, but in the view we take of the case it appears unnecessary to notice them.

On November 19, 1916, William A. Newton executed his will. He died very shortly thereafter. In one of the clauses of his will Newton devised to his wife Alice F. Newton certain lands in Bates County, Missouri, "to have and to hold for and during the term of her natural life, and at her decease the said land to pass to and become the property of the Newton Burial Park, a benevolent corporation, to be by the said corporation disposed of for the purposes and upon the conditions as follows, viz: the trustees or other proper officers of the said corporation shall make sale of...