153 Mass. 462 | Mass. | 1891
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
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
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
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
We are of opinion that the trust is not wholly void, and that the decree of the Probate Court should be affirmed.
So ordered.