Legal Matters Affecting Cemeteries

Date Published: 
September, 1905
Original Author: 
John E. Miller
Dodge Grove Cemetery, Matoon, Illinois
Original Publication: 
AACS Proceedings of the 19th Annual Convention

I confess to a good deal of nervousness, representing as I do one of the smallest cemeteries in our Association, in writing a paper for this meeting, especially on so important a subject as the one before us. Legal matters affecting cemeteries is a pretty broad term and when we take into consideration that each State has its own laws, the subject is still more complicated. As I understand it, this paper is only intended to open up the subject in a general way and that it will be discussed more in detail by those who will follow. This being true, I shall endeavor to be brief and confine myself mostly to the situation as I find it in the State of Illinois. In this State it is no trouble to start a cemetery. The trouble is in providing for its future. The laws of our State relating to cemeteries are so general in their nature that we are left in doubt in so many specific cases. In this paper I can only mention a few of the questions that arise in most of our cemeteries and especially those that deed the ground. First, the legal right of the lot owner; so many persons believe because they hold a deed to a cemetery lot that it gives them the liberty to put on it, or improve it in any way or manner they see fit or proper. And it is an open question, in Illinois at least, how far they can be prevented.

I have spent a good deal of time among out attorneys investigating this subject, and I find almost without exception that they support the decision of the Supreme Court of Georgia, given in the May number of Park and Cemetery; page 267, "That the purchaser of a lot in a public cemetery, though under a deed absolute in form, does not take any title to the soil, but that he acquires only a privilege of license to make interments in the lot purchased, exclusively of others so long as the grounds remain a cemetery." But, that in the matter of rules and regulations for transfer of title, and very stringent rules in general, it would require a Supreme Court decision. Most all our cemetery deeds have a clause in them making the purchaser subject to the rules and regulations of the cemetery, but in the absence of any legal decisions on the subjects we do not know whether they will hold good or not. I give you an illustration.

A cemetery assesses each lot owner from one to five dollars a year for annual care of lot. The lot owner gets several years in arrears. Another rule says no interment can take place until all arrearages are paid. Can they enforce the rule? If so, it ought to in a manner settle the question of perpetual care of lots. Again, many cemeteries have a rule that no transfer of title to lots is legal without the association's consent.

Will that rule stand the test when the cemetery trustees or board of managers’ deed the ground?

Now I want to quote a few extracts or statements from a paper read by Fred M. Farwell, of Chicago, before the Illinois Association of Cemeteries, August 22, 1904. He said, "One of the most important matters we have to deal with and which is bound to arise more frequently in the future is the right of burial in lots and to whom all owed after the decease of the owner. Also the right of heirs to dispose of a lot in which the original owner is interred. Very few lot owners deed their lots back to cemeteries, in trust, naming those who shall have burial privileges in the deed, and as we have no law whatsoever on the subject, there is nothing to prevent some distant legal heir from trying, at least, to remove the bodies to single graves and selling the lot to outsiders. We may have rules and rules in regard to such proceeding, but will these rules stand in a court of law. I think it should be brought to the attention of every lot owner to deed his lot back to the Association, naming in the deed those whom he desires to have the right of burial.

It is the only way he can protect himself and be assured that his bones will lie in peace where he intends them to. I have in mind a case where a man died and in his will left a certain sum of money to his heirs to purchase a lot and erect a vault upon it, in which, as he supposed, his remains would be placed for all times. His heirs bought the lot in the name of the heirs of Mr. So-and-so, built the vault and entombed him. But he did not rest there long, as the heirs sold both the lot and vault and his remains now lie in a single grave. Had the title been invested in the Association this could not have happened!

We should have laws in regard to these important matters as they concern the general public and I think that the more stringent they are in regard to the rights of burial and transfer of lots the better for both the lot owner and cemetery.

Until last winter it was impossible to start a perpetual care fund in the cemetery I represent being owned and controlled by the City of Mattoon, as the City Council could not legally pass an ordinance and make it perpetual. So I enlisted the Senator and Representative from our district and they succeeded in getting an amendment to our State cemetery laws providing for that fund in cemeteries owned by cities and villages.

The legislative committee of the Illinois Association of Cemeteries had four separate bills introduced in the State Legislature last winter, but owing to the press of business and an early adjournment they did not pass, but we will certainly get them through next session. The provisions of the different bills are as follows. Specifying who can be buried in a cemetery lot; to prevent trafficking in the same and giving the trustees directors or managers of any cemetery, full control to make such reasonable rules arid regulations as they may deem necessary to enhance the general beauty of the cemetery in their charge. To provide police protection not only in the cemetery, but in the streets and alleys adjoining the same. To prohibit peddlers from selling or giving away any spirituous or malt liquors or drink of any kind, or running popcorn stands within 1,000 feet of the entrance to any cemetery in the State. And also to make it a felony for any person or persons to molest or in any way disturb any funeral procession or hearse or in any way disturb or interfere with the peaceful burial of the dead.

I am aware that in many of the States these and other questions of vital importance are settled by statute and we propose through the Illinois Association of Cemeteries to see that our Legislature enact such laws as will not only protect the lot owner but the cemetery association.
From the publication:
AACS - Proceedings of the 19th Annual Convention
Held at Washington, DC
September 19, 20, 21 and 22, 1905