R.I. Hosp. Trust Co. v. Proprietors of Swan Point Cemetery

• Decision Date: 22 December 1938
• Docket Number: No. 1414.,1414.
• Citation: 3 A.2d 236
• Parties: RHODE ISLAND HOSPITAL TRUST CO. v. PROPRIETORS OF SWAN POINT CEMETERY et al.
• Court: Rhode Island Supreme Court

3 A.2d 236

RHODE ISLAND HOSPITAL TRUST CO.

v. PROPRIETORS OF SWAN POINT CEMETERY et al.^*

No. 1414.

Supreme Court of Rhode Island.

Dec. 22, 1938.

[Copyrighted mateiral omitted.]

Certified from Superior Court, Providence and Bristol Counties.

Bill in equity by the Rhode Island Hospital Trust Company, as executor and trustee under the will of Alfred Barth, deceased, against the Proprietors of Swan Point Cemetery and others, praying for the construction of certain portions of the will. The cause, being ready for hearing for final decree in the superior court, was certified by that court to the Supreme Court pursuant to Gen.Laws 1923, c. 339, § 35.

Order in accordance with opinion.

Tillinghast, Collins & Tanner, Harold E. Staples, and Robert W. Hankins, all of Providence, for complainant.

Richard E. Lyman, of Providence, for respondent Swan Point Cemetery.

William B. Greenough and Ronald C. Green, Jr., both of Providence, for respondent Philadelphia College of Pharmacy and Science.

Daniel A. Colton, of Providence, for respondent Frank C. Meagan, Jr.

Henry R. Di Mascolo, of Providence, for respondent Charles A. Barth.

George Ajootian, of Providence, for respondent Alice M. McKenzie.

BAKER, Justice.

This is a bill in equity praying for the construction of certain portions of the will of Alfred Barth, late of Providence, deceased. The bill is brought by the complainant as executor and trustee under said will, and the respondents are all the other parties in interest. The cause, being ready for hearing for final decree in the superior court, has been certified by that court to us for determination pursuant to the provisions of General Laws 1923, chapter 339, sec. 35. No evidence was offered in the superior court by any of the parties, and the matter is now before this court on bill and answers.

The complainant first seeks to be informed as to its duty under the provisions of the second clause of the will in question, viz: "second I order my above named executor to pay to the Swan Point Cemetery corporation the sum of One Thousand Dollars, the interest therefrom to be used for flowers on decoration day, and keeping my monument in condition, having the date of mine and my wife's death cut on said monument." The Proprietors of Swan Point Cemetery, a corporation, contends that the bequest to it is valid and that the complainant should pay over to it forthwith the sum named in said clause. The respondents Charles A. Barth and Alice M. McKenzie, each having a life interest in a fractional part of the income derived from a trust established by the testator's will in his residuary estate, maintain that the bequest set out in said second clause is invalid and unenforcible, and that the sum mentioned therein falls into the trust above referred to. The respondent Philadelphia College of Pharmacy and Science, as the ultimate beneficiary under the trust, has not briefed or argued any point in connection with the above clause.

It is well settled in this state that, unless given legislative sanction, a trust for the general purposes enumerated in the abovementioned clause is invalid and unenforcible, being in perpetuity and constituting a private and not a charitable use. Kelly v. Nichols, 17 R.I. 306, 21 A. 906, 19 L.R.A. 413; Sherman v. Baker, 20 R.I. 446, 40 A. 11, 40 L.R.A. 717; Shippee v. Industrial Trust Co., 43 R.I. 115, 110 A. 410, 14 A.L.R. 115; Todd v. St. Mary's Church, 45 R.I. 282, 120 A. 577; Meehan v. Hurley, 51 R.I. 51, 150 A. 819.

The legislature, however, has authorized the establishing of trusts in perpetuity, generally speaking, for the care and preservation of cemeteries, burial lots, monuments and other such structures. Town councils may receive and hold funds for such general purposes, G.L.1923, chap. 51, sec. 40, as may trust companies under certain specified conditions. G.L.1923, chap. 271, sec. 4(i). Further, certain cemetery corporations, in this state have likewise been specially permitted by their charters to take and hold funds in perpetuity for certain abovementioned purposes. Probate courts are also given certain jurisdiction in regard to authorizing expenditures from estates for such matters. G.L.1923, chap. 369, sec. 4.

In the instant case the cemetery corporation contends that it is entitled to receive and hold the fund mentioned in the second clause of the testator's will by reason of a provision in its charter as follows: "Sec. 6. Any lot owner in said cemetery may at any time by deed or will convey or devise any lot or parcel of land therein then owned by him in his own right in fee simple to this corporation, to hold the same in perpetual trust for such uses and purposes consistent with the objects of the corporation as may be in such trust deed or devise declared, and any person may convey, devise, or bequeath any estate, real or personal, to this corporation in perpetual trust, to apply the same or the proceeds or income thereof to the care, support, or improvements of said cemetery, or any part thereof, or any lot or monument or structure therein, provided that no such trust shall be binding or obligatory upon the corporation until the same has been accepted by vote of the Directors for the time being duly recorded."

The parties hereto do not question that under the above provision the cemetery corporation would be entitled to hold funds, income from which was to be used to cut dates on a monument in said cemetery and keep such monument in condition. A question is raised, however, by certain respondents regarding the validity of the use of income for the other purpose set out in the abovementioned second clause, viz: "for flowers on decoration day."

A somewhat similar question was considered by the court in Meehan v. Hurley supra, where a testator bequeathed $500 to an individual trustee "said money to be used until the fund is exhausted in the purchasing of flowers which I hereby direct my executor shall place every year at Easter, Decoration Day and Christmas upon my grave." 150 A. 820. The court there held that the above provision created a private and not a charitable trust, and said at page 52, 150 A. at page 820: "If a testator is not permitted to create a private trust for the perpetual care of his burial lot, with greater reason should he be prevented from creating a private trust for placing flowers upon his grave for an indefinite length of time."

The Meehan Case, however, differs from the case at bar in that in the former the named trustee was an individual, whereas in the instant case the trustee is a cemetery corporation authorized by its charter to hold funds in trust in perpetuity for certain named purposes. Moreover, in that case the court did not specifically discuss or decide whether or not another trustee could properly be named to execute the trust then before the court, but it merely held that such trust could not be carried into effect. That case is, therefore, not wholly determinative of the issue herein, since it is not entirely clear whether the decision rests upon the ground that the trustee named was an individual unauthorized by legislative sanction to hold funds for the designated purpose, or upon the ground that the object sought to be attained by the testator could not be carried out in any event, because it constituted a private use in perpetuity not recognized or permitted by any specific legislative authority.

In the present case it is clear that the named trustee, a cemetery corporation, is qualified to hold in trust the fund involved herein, provided the purpose relating to the use of flowers on Decoration Day is included in the authority conferred upon said cemetery corporation by the terms of its charter. The material provision of the charter is as follows: "to apply the same (estate) or the proceeds or income thereof to the care, support, or improvements of said cemetery, or any part thereof, or any lot or monument or structure therein, * * * ". The question is presented therefore as to whether or not the above language can and should be construed so as to authorize the cemetery corporation to employ income of the trust fund for flowers for the testator's lot on Decoration Day, in accordance with his expressed intent.

In considering this question it has come to our attention that frequently cemetery corporations or other bodies are given by statute or charter the specific right to hold and employ funds or the income thereof for the purpose of planting flowers, trees and shrubs in cemeteries and in the lots thereof. Likewise in similar statutes and charters the words "embellishment", "beautifying" or "ornamenting" often appear in connection with the authority to hold and expend money for the care and maintenance of said cemeteries and the lots, graves and monuments therein. However, no specific words of like import appear in the charter now before us. It may here be noted that in G.L.1923, chap. 51, sec. 40, dealing with the power of town councils to hold funds for the above purposes, the word "ornamenting" appears.

We feel that undoubtedly the legislature intended to grant to the Proprietors of Swan Point Cemetery under the terms of its charter reasonably wide authority in the handling of the funds entrusted to its care, and it is our opinion that such terms should be liberally and broadly construed so as not to limit unduly the cemetery corporation, but to permit it, when fairly possible, to carry out the intents and desires of testators in connection with the care, support and improvement of their lots and structures in said cemetery. However, the authority of the cemetery corporation clearly is not unlimited in this regard, but must be confined within the reasonable meaning of the language used in the charter. The nature of a private use or purpose for which funds may be held in perpetuity under legislative authority is a question of public policy for the legislature to pass upon, and any sanction should appear clearly...