If a cemetery authority accepts care funds, either in connection with the sale of a lot, grave, crypt or niche or in pursuance of a contract, or if, as a condition precedent to the purchase of a lot, grave, crypt or niche, the cemetery authority requires the establishment of a care fund or a deposit in an already existing care fund, the cemetery authority shall execute and deliver to the person from whom it receives care funds an instrument in writing that shall specifically state:

1. A. the nature and extent of the care to be furnished;
2. B. that the care shall be furnished only insofar as the net income derived from the amount deposited in trust will permit, and that the income from the amount so deposited less necessary expenditures of administering the trust constitutes net income;
3. C. that the cemetery is operated as an endowed care cemetery, which means that a care fund for its maintenance has been established in conformity with the Endowed Care Cemetery Act and the definition of endowed care in that act; and

4. D. that not less than the following amounts will be set aside and deposited in trust:

   1. (1) for graves, twenty-five percent of the lot or land sales price unless a lesser amount is approved by the director;
   2. (2) for a crypt or niche, ten percent of the sales price; and
   3. (3) for the special care of any lot, grave, crypt or niche or the family mausoleum, memorial, marker or monument, the full amount received.
5. E. The setting aside and deposit pursuant to Subsection D of this section shall be made by the cemetery authority not later than thirty days after the close of the month in which a payment was received from any source on the purchase price of each lot, grave, crypt or niche or a payment was received from any source for the general or special care of a lot, grave, crypt or niche or of a family mausoleum, memorial, marker or monument. If payments are made in installments, only the applicable pro rata share of the payments shall be deposited. Amounts deposited shall be held by the trustee of the care funds of the cemetery authority in trust in perpetuity for the specific purpose stated in the written instrument.

History: 1953 Comp., § 67-29-6, enacted by Laws 1961, ch. 156, § 6; 1981, ch. 192, § 1; 2001, ch. 149, § 6.

ANNOTATIONS

The 2001 amendment, effective July 1, 2001, in the undesignated paragraph, deleted "owning, operating, controlling or managing a cemetery" preceding "accepts care funs", substituted "it receives care funds" for "received"; in Subsection B, inserted "and that" preceding "income", substituted "constitutes" for "shall be deemed the"; in Subsection C, substituted "a care fund" for "an endowed care fund", "Endowed Care Cemetery Act" for "laws of the state of New Mexico" and "in that act" for "as it appears in Section 58-17-3 NMSA 1978"; in Subsection D, deleted "of the financial institutions division" from the end of Paragraph (1), deleted "vault" following "crypt" in Paragraph (2); and in Subsection E, inserted "pursuant to Subsection D of this section", and deleted "vault" following "niche".

Deposit within 30 days after close of sale not required. — This section does not require a deposit of 25% of the sales price of a lot within 30 days after the close of the sale. State v. Collins, 1969-NMSC-104, 80 N.M. 499, 458 P.2d 225 (decided prior to 1981 amendment).

State to prove required deposit not made following month final payment received. — This section states that not less than 25% of the lot or land sales price for graves will be deposited in the trust fund not later than 30 days after the close of the month in which the final payment was received. The state must prove beyond a reasonable doubt that 25% of the sales price was not deposited in the fund prior to the termination of the 30-day period, and simply proving that no sums had been deposited in the fund for a limited period of months or years prior to the sale is insufficient. State v. Collins, 1969-NMSC-104, 80 N.M. 499, 458 P.2d 225 (decided prior to 1981 amendment).

Failure to comply with time and amount requirements deemed crime. — Regardless of the condition of the trust account at any given moment, it is a crime to fail to deposit the amounts required and in the time required by this section, but these requirements can be met by deposits in advance of the closing of the sale. State v. Collins, 1969-NMSC-104, 80 N.M. 499, 458 P.2d 225.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 14 Am. Jur. 2d Cemeteries §§ 9, 26.

Duty to use proceeds of sale of cemetery lots for care, maintenance or improvement of cemetery as affected by statute, 124 A.L.R. 279.

14 C.J.S. Cemeteries §§ 3, 26, 27.