Green v. Hogan
27 N.E. 413
Mass.
1891
Check Treatment
Field, C. J.

This is a proceeding in equity for the construction of a will. Swasey v. Jaques, 144 Mass. 135. The petition was filed in the Probate Court, and an appeal taken from the decree of that court" to the Supreme Judicial Court, where the case was heard by a single justice, and reported to the full court. The rules established for regulating the practice and conducting the business of probate courts pursuant to the Gen. Sts. c. 117, § 19, now the Pub. Sts. c. 156, § 22, apparently do not cover proceedings in equity. See Baker v. Blood, 128 Mass. 543. We think, however, that until rules are established for such proceed*465ings in the probate courts, the pleadings and practice ought, as nearly as practicable, to conform substantially to the equity procedure in the other courts of the Commonwealth. The persons interested, who ought to be made parties respondent, should be described by name and residence, and a citation or subpoena should be issued addressed to them, or containing their names, which should be served upon them if they are within the Commonwealth and personal service can be made; they should appear and answer, or the bill or petition should be taken for confessed against them, and a decree should be entered according to the forms of decrees in equity. In the present case there are no pleadings except the petition, and no decree except the final decree of the Probate Court; but all the persons who, by the petition, appear to be interested in the question presented apparently resided within the Commonwealth, except Daniel Hogan, and we infer that the citation was served personally on all but Hogan, who resided in New Jersey and to whom a copy was sent by mail, and notice was also published in a newspaper designated in the order of the court. All the persons interested have appealed from the decree of the Probate Court, and we infer that they all appeared before the Probate Court, and before the justice of this court who heard and reported the case, and they all have, by counsel, argued the case in this court. Although all the forms usual in equity proceedings have not been followed, yet we think it appears that everything essential has been done to bring the question presented by the petition properly before this court.

It appears by the decree of the Probate Court, that the question of the validity and construction of the third clause of the will was waived, probably because there was no doubt as to its validity and construction, and that the only question is upon the validity of the fourth or residuary clause. In Bates v. Bates, 134 Mass. 110, 114, it is said that “ it has been repeatedly held that a bequest to provide a fund for the permanent care of a private tomb or burial place could not be treated as a public charity and thus made perpetual, and that such bequest would be void”; and that the Pub. Sts. c. 82, §§ 8, 17, had no application to the case there presented. The Pub. Sts. c. 82, §§ 6-8, relate to cemetery corporations “ created by special charter or organized *466under the general laws ”; and § 17 of the- same chapter relates to “ a lot in a public burial place of a city or town.” See St. 1885, c. 302; St. 1890, c. 264, § 4.

From the facts reported in the present case, it appears that Michael Hogan, the testator, owned rights in a burial lot in St. Mary’s Catholic Cemetery, in Westfield, in this Commonwealth, and that the fee of the land was in the Roman Catholic bishop of the diocese; that there was established in Westfield a Roman Catholic church, of which Hogan was a member; and that “ the resident priest, subject to the bishop, holds and exercises control over the church and the cemetery.” It is plain from the report, that this cemetery is not a public burial place of the town of Westfield, or a cemetery belonging to a corporation. It does not appear when the land in this cemetery was first used and appropriated for the purpose of the burial of the dead, or that permission to use it for this purpose has been obtained from the town of Westfield; but we shall not assume that the land was unlawfully used for this purpose in th.e absence of any contention of this kind by any of the parties. See St. 1855, c. 257, § 3; Gen. Sts. c. 28, § 5; Pub. Sts. c. 82, § 18; Meagher v. Driscoll, 99 Mass. 281. It is impossible precisely to determine from the report what rights of burial Michael Hogan acquired in the lot to which he is declared entitled by the written instrument delivered to him, or whether on his death any rights of burial descended to his heirs; but it is clear that no rights of burial were granted to the public, or to any indefinite portion of the public, and it must be taken that this is a private burial lot in a private cemetery.

The St. of 1884, c. 186, authorizes any city or town “to receive, hold, and apply any funds, moneys, or securities which may be deposited with the treasurer of such city or town for the preservation, care, improvement, or embellishment of any public or private burial place situated therein, or of burial lots located in the same.” The effect of the Pub. Sts. c. 116, §§ 35, 36, was considered in Gates v. White, 139 Mass. 353. In that case it was said in the opinion, that § 36 of the Pub. Sts. c. 116, “ fairly covers a case like the one before us, where an executor holds money which his testator has appropriated to the purpose of maintaining in repair his cemetery lot, and we think the in*467tention of the Legislative was to enable the judge of probate to carry out the purpose of the will, and to create a trust in a savings bank which should not be void as a perpetuity.” See Pub. Sts. c. 144, § 6. The Pub. Sts. c. 116, §§ 35, 37, and 38, were derived from the St. of 1875, c. 174; and the Pub. Sts. c. 116, § 36, from the St. of 1877, c. 162. It is probable that the Legislature, in passing the St. of 1875, c. 174, intended to confer additional powers upon savings banks, and in passing the St. of 1884, c. 186, intended to confer powers upon cities and towns in addition to those conferred by the Pub. Sts. c. 82, § 17, and that in passing the St. of 1877,-c. 162, the principal intention was to enable executors, administrators, and trustees holding money in trust for any of the purposes mentioned in the St. of 1875, c. 174, to discharge themselves of the trust by depositing the money in a savings bank under the authority of a judge of probate.

The effect of all these statutes undoubtedly is, that the money, when received by a cemetery corporation, a savings bank, or by the treasurer of a town, upon the trusts described in the statutes respectively, is held upon a valid trust, even if independently of these statutes the trust would be void. Whether the Legislature by the St. of 1877, c. 162, intended that the validity of a trust for the purposes there mentioned should depend in any degree upon the discretion of a judge of probate, certainly does not clearly appear. It might, perhaps, be suggested, that the purposes mentioned in the Pub. Sts. c. 116, § 35, may all be public purposes, and that the cemeteries and cemetery lots intended should be held to be such as are described in the Pub. Sts. c. 82, § 15. In Gates v. White, ubi supra, however, the lot was in the Lowell Cemetery, which was owned by a corporation, and not maintained by the city of Lowell. The St. of 1884, c. 186, in terms relates to private burial places as well as to those which are public, and to burial lots in the one as well as in the other; and § 8 of the Pub. Sts. c. 82, relates to lots in the cemeteries of corporations.

In the opinion of a majority of the court, the most reasonable construction of these statutes is, that the Legislature regarded the maintenance and improvement of cemeteries and cemetery lots, whether in a legal sense they were public or not, as a matter which concerned public interests, and intended that property *468might lawfully be given and held in perpetual trust for the preservation of burial lots in cemeteries, whether the cemeteries were public burial places or not, and that, foreseeing some of the inconveniences which would arise if the trustees must be natural persons only, it also authorized cemetery corporations, cities, towns, and savings banks to act as trustees of such a trust. It is not necessary now to determine whether, if the whole property given should prove to be more than sufficient to accomplish the purpose of the trust, it is not within the power of the Probate Court, or of a court of equity, to set aside a part of the property sufficient for the purpose, and to permit the remainder to be distributed as intestate property.

We are of opinion that the trust is not wholly void, and that the decree of the Probate Court should be affirmed.

So ordered.