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Cemetery Maintenance

Traditionally cemetery management only involves the allocation of land for burial, the digging and filling of graves, and the maintenance of the grounds and landscaping. The construction and maintenance of headstones and other grave monuments is usually the private responsibility of families of the deceased.  When burgeoning urban populations started crowding out churchyards traditionally used for burials, laws governing this matter were enacted.  Now, every crematory shall be maintained and operated in accordance with the relevant statutory regulations.

For instance, the Rural Cemetery Act was a law passed by the New York Legislature on April 27, 1847, that authorized commercial burial grounds in rural New York state. The law led the burial of human remains to become a commercial business for the first time, replacing the traditional practice of burying the dead in churchyards and on private farmland.

Usually there is a legal requirement to maintain records regarding the burials (or interment of ashes) within a cemetery. These burial registers usually contain at a minimum the name of the person buried, the date of burial and the location of the burial within the cemetery, although some burial registers contain far more information about the deceased person. Burial registers are an important resource for genealogy.

One issue regarding cemeteries relates to cost. Traditionally a single payment is made at the time of burial, but the cemetery authority incurs expenses in cemetery maintenance over many decades. Many cemetery authorities find that their accumulated funds are not sufficient for the costs of long-term maintenance.  All of these issues tend to put pressure on the re-use of grave sites within cemeteries. The re-use of graves already used for burial can cause considerable upset to family members.

It is within the power of the legislature to provide for the establishment of public cemeteries[i]. A cemetery is a public utility within the meaning of a constitutional provision authorizing a municipality to incur indebtedness with the approval of the voters for the purpose of purchasing, constructing, or repairing public utilities, to be owned exclusively by the municipality. A municipal corporation may accept and hold land in trust for a burial ground. A town also may accept and hold trust funds for the perpetual care of private burial lots in a town cemetery.

An example for this is NY CLS EPTL § 8-1.5, which provides that “Dispositions of property in trust for the purpose of the perpetual care, maintenance, improvement or embellishment of cemeteries or private burial lots in cemeteries, and the roadways, lawns, hedges, walks, fences, monuments, structures and tombs in such cemeteries or on such private burial lots are permitted and shall be deemed to be for charitable and benevolent purposes. Such dispositions are not invalid by reason of any indefiniteness or uncertainty of the persons designated as beneficiaries, nor shall they be invalid as violating any existing rule against perpetuities. Nothing herein contained shall affect any existing authority of the courts to determine the reasonableness of the amount of such disposition. Any cemetery association may act as trustee of and execute any such trust with respect to lots, roadways, lawns, hedges, walks, fences, monuments, structures and tombs both within its own cemetery limits and outside of any cemetery under its control but within the county where such cemetery is located, whether or not such power is included among its corporate powers.”

Further, Congress has made provisions for a congressional cemetery. Under the Constitution, Congress has the power to acquire land for national cemeteries and to make all necessary rules and regulations respecting the use of such property.

In Kingsbury v. Flowers, 65 Ala. 479, 39 Am. Rep. 14., the court made it clear that “ burial places for the dead are indispensable. They may be the property of the public, devoted to the use of the public; or the owner of the freehold may devote a part of his premises to the burial of his family or friends. It is but a just exercise of his dominion over his own property. Neither adjoining proprietors, nor the public, can complain, unless it is shown that, from the manner of burial, or some other cause, irreparable injury will result to them. It is quite an error to suppose, that of itself a burying ground is a nuisance to those living in its immediate vicinity”[ii].

In Garland v. Clark, 264 Ala. 402, 405-406 (Ala. 1956), the court held that for a place to be called a public cemetery, “the intention of the owner of the land to dedicate it for a public cemetery, together with the acceptance and use of the same by the public, or the consent and acquiescence of the owner in the long-continued use of his lands for such purpose, are sufficient.”

In any sale of a property which is used as a cemetery and home of the dead must be respected and preserved. The purchaser must buy a cemetery with its restrictions and limitations. The owners of burial lots and friends and relatives of the buried dead, and to an extent the public, having interests to be protected [iii]. Furthermore, such property when conveyed by the owner to individual proprietors for burial sites shall not be subject to be seized or sold in execution or under judgment or attached or applied to the payment of debt or passed to the assignee under any bankruptcy or insolvency law.

As far as private ownership and maintenance of cemeteries are concerned, the owner of a freehold may devote a part of his premises to a plot for the burial of his family or friends.  A cemetery may be established and conducted as a business and for profit[iv]. To provide for the repose of the dead is as lawful as to provide for the comfort of the living, assuming that the cemetery is conducted in accordance with regulations imposed by statute or ordinance. A church is permitted to operate a cemetery for the benefit of its parishioners if its charter so contemplates.

There are statutory provisions which apply to privately operated cemeteries.  For instance, Section 5 of the Act of 1903, Ill. Rev. Stat. ch. 21, para. 39 (1951), provides that when a cemetery is a privately operated cemetery, as defined in § 2 of the Cemetery Care Act, Ill. Rev. Stat. ch. 21, para. 64.1 et seq. (1951), enacted by the Sixty-fifth General Assembly, then such cemetery association shall also comply with the provisions of the Cemetery Care Act[v].

The Cemetery Care Act provides that these cemeteries are required to secure a license from the Auditor of Public Accounts before acquiring care funds.  In order to secure such a license, detailed information as to personnel and finances must be given and the license may be refused if certain specified conditions are not met.  A privately operated and licensed cemetery must file an annual report with respect to its care funds.  This report must show the income to and disbursements from the fund and list the securities in which the fund is invested. The books of such cemetery must be open at all times to inspection.  In the administration of care funds, privately operated cemeteries are subject to examination, supervision and regulation by the Auditor who may, upon certain conditions, revoke the license to handle care funds either temporarily or permanently.  Before accepting care funds in connection with the sale of burial space, a private authority must specify in writing the nature and extent of the care to be furnished, for which it must require the deposit of a given amount based upon sale price or the size of the burial space.  Except where exempted by the act, these private associations are required to post a bond to insure the proper handling of care funds[vi].

The powers of a cemetery association or corporation are also extended and limited by the statute under which it is organized or incorporated and by its charter or articles of incorporation or association or by its bylaws. A cemetery corporation usually is organized for a public rather than a private purpose, and cemetery management is in the nature of a trust. In order to secure permanent care, the legislature permits cemetery associations to exist with the duty of providing, maintaining and protecting burial grounds. For purposes of upkeep and the proper care of the burial ground, cemetery associations may acquire and hold property through trustees who must perform such duties as specified in the trust instrument or, in the absence of such specification, as required by law. However, absent statutory authority, an unincorporated association, including a cemetery society, cannot legally acquire and hold property in the association’s name. Statutory authority may be granted to cemetery companies to accept a gift, devise, or bequest, in trust, for the purpose of keeping in good order and repair family burial lots, monuments, and improvements, or for the general decoration of such lots.

Ordinarily, the management of a cemetery association is vested in a board of trustees who are appointed or elected and act with such authority as the statutes under which the association is organized vests in them.  A cemetery corporation or association may be subject to dissolution under a statute relating to the maintenance of abandoned cemeteries.

[i] Bryan v. Mayor, etc., of Birmingham, 154 Ala. 447 (Ala. 1908)

[ii] Bryan v. Mayor, etc., of Birmingham, 154 Ala. 447, 451 (Ala. 1908)

[iii] United Cemeteries Co. v. Strother, 332 Mo. 971, 976 (Mo. 1933)

[iv] United Cemeteries Co. v. Strother, 332 Mo. 971 (Mo. 1933)

[v] Union Cemetery Ass’n v. Cooper, 414 Ill. 23 (Ill. 1953)

[vi] Union Cemetery Ass’n v. Cooper, 414 Ill. 23 (Ill. 1953)

Inside Cemetery Maintenance