Essig Estate

Opinion by Beño, J., St. Mary’s Cemetery Association appealed from tbe final decree entered in tbe audit of tbe account of tbe successor trustees under tbe will of Sebastian Essig. Tbe decedent died on April 26, 1878, and bis will provided: “. . . I give to tbe Trustees of Saint Mary’s Catholic Cburcb their successors and assigns tbe sum of five hundred (500) dollars, the annual interest of which shall he applied to keeping in good repair the grave of my daughter Lizzie A. 8. Hook and the graves of my said wife and of myself, and for keeping in good repair the fence enclosing our burial lot in tbe Cemetery of said Saint Mary’s Catholic Cburcb, . . .” (Emphasis supplied.) Tbe original trustees declined to act and tbe present accountants are successors to intermediate trustees appointed by tbe court. Tbe account disclosed a balance of $534.94 principal and $59.96 income. It covered tbe period from 1934 to 1948, and revealed over tbe years an annual gross income of $13.75 and payments to tbe cemetery association for upkeep of tbe burial plot of $4.00 a year, except during 1940 when $6.00 was paid and 1947 when $10.00 *68 was paid. 1 In 1937 the markers were cleaned at an expense of $25.00. From accnmnlations of income a monument was erected in 1934 at a cost of $550 and in 1939 a foundation for a tombstone cost $234.99. Tbe cemetery association excepted to tbe account, and claimed tbe unexpended income. It proposed to use tbe award for its general purposes in the operation and maintenance of parts of tbe cemetery other than tbe Essig burial lot. President Judge Appel, tbe auditing judge, allowed tbe claim to tbe extent of $50, leaving $9.96 to tbe accountants and directed them “to continue payment from the annual income [to tbe cemetery] such sums approximately relative to those heretofore made as indicated in tbe present accounting, until such time as tbe Court may make additional orders.” Tbe auditing judge’s successor, President Judge Bowman, bolding that there was “no unreasonable accumulation of income and, therefore, no surplus income”, sustained tbe accountants’ exceptions, and in the final decree set aside tbe award to tbe cemetery. Tbe ground upon which Judge Bowman pitched bis decision is unassailably sound. Without violating any statutory or testamentary direction against accumulations, trustees may, within reasonable limits, retain temporarily a certain amount of surplus income in aid of tbe judicious management of tbe trust and to provide for future contingencies. Sinnott’s Est., 310 Pa. 463, 165 A. 244; Howell’s Est., 180 Pa. 515, 37 A. 181. Cf. Estates Act of April 24, 1947, P. L. 100, §6(1), 20 P. S. §301.6. Conceivably a decline in earnings may occur, tbe cost of maintenance may be increased, unanticipated *69 expenditures may be required in tbe future, and it cannot be said that retention of $59.96 is excessive or unreasonable. Even if the future income is not decreased several years must necessarily elapse before a sufficient sum can be accumulated for another cleaning of the monuments. Counsel fees and the printing costs in this appeal impose a present obligation. This appeal and Slifer v. Greenmount Cemetery Co., 164 Pa. Superior Ct. 534, 67 A. 2d 584, testify to the difficulties encountered by cemeteries in these days of increasing costs of operation and maintenance. Appellant’s receipts during 1947 were $2881.78 and its expenditures $4587.77. Naturally the cemetery authorities have not been able to maintain the grounds at the highest level of good order and repair, and their search for further income available for general purposes is understandable. But the devise here was for a specific, not a general, purpose: for the “repair [of] the grave of my daughter . . . and the graves of my said wife and of myself, and for keeping in good repair the fence . . .” Something can be said on behalf of the proposition that individual lot-owners are interested in the appearance of the cemetery as a whole, and that its adequate maintenance is within the spirit and intent of testators. 2 For that proposition appellant frankly invokes the application of the cy pres doctrine. Cy pres operates only on charitable trusts (Restatement, Trusts, §399), 3 and a trust for the care of a burial *70 plot is not a charitable trust. It is a private trust, so declared in Deaner’s Est., 98 Pa. Superior Ct. 360, 364 (allocatur refused, Id. xxy) where Judge, now Mr. Justice Linn, speaking for this Court, exhaustively examined the subject, reviewed numerous authorities, and concluded: “When the familiar definition of a charitable use ... is applied, there is no difficulty in distinguishing charitable trusts from disposition of property for the care of the family [cemetery] lot; there is no element of charity in the latter case; . . See also Stephan’s Est., 129 Pa. Superior Ct. 396, 195 A. 653. Appellant relies upon Neely’s Est., 88 Pa. Superior Ct. 372, affirmed 288 Pa. 130, 135 A. 540, and Brogan’s Est., 290 Pa. 319, 138 A. 837. They contain intimations that excess income of a burial-plot trust is administrable under the cy pres doctrine. Judge Linn referred to these cases and analyzed Neely’s Est., in Deaner’s Est., supra, p. 369. He explained that “in Neely’s Estate an administration cy pres was affirmed by this Court in consequence of the peculiar circumstances in which testatrix made the bequest to the church, having regard to the condition of the cemetery and the church . . .” The Neely case, therefore, must be limited to its own peculiar facts. Brogan’s Est., supra, p. 332, even if it did not expressly repudiate Judge Hendeeson’S suggestion in the Neely case, cannot be read as an extension of cy pres beyond the confines of the factual situation there present. If these intimations are at all applicable they can mean only that possibly trustees in the exercise of reasonable discretion and with judicial approval might have authority to contribute surplus income for the general purposes of the cemetery. Certainly the cemetery authorities cannot adversely lay hold of the trust fund for any purpose they deem proper. This appeal might well have been quashed under the authority in Devereux Est., 353 Pa. 560, 46 A. 2d 168. *71 Appellant bas been paid its annual fee for maintaining tbe plot, and benee it is not a creditor. Nor can it be said to be a beneficiary under tbe decedent’s will. In tbe court below it was allowed to proceed as a claimant, and, since both parties desire a decision on tbe merits, we concluded to overlook appellant’s lack of standing in tbis Court. Decree affirmed; the parties will pay tbeir own costs. Footnotes [1] The cemetery charges $6.00 annually for the services it renders to the lot. This leaves $7.75 for trustees’ compensation and costs of filing periodic accounts, for additional care, and for repairs to and cleaning of stones. [2] However, if the small annual surplus income were taken from the trustees and expended for work in other parts of the cemetery it is conceivable that the Essig lot could not be maintained at its present standard. [3] Restatement, supra, Comment a distinguishes the cy pres doctrine from “an analogous but not as extensive a principle, which is applicable to private trusts.” The rule for the principle applicable to private trusts is stated in §167.