Joy v. Fesler

Chase, J. The burying-ground in the Joy farm was set apart by the owners of the farm for the use of the Joy family. The testatrix, being a member of the family, had a right to appropriate .a reasonable portion of it for a burial lot for herself. By directing *259 that her remains should be deposited in a permanent brick vault in this ground, she signified her election to make use of her right. She did not select the particular location for her lot, nor determine its size and form, but left these matters to be attended to by her executors. They could not perform the duties expressly imposed upon them without selecting a lot and fixing its boundaries. In doing so they were bound to regard the rights of others, and to act reasonably under all the circumstances. Upon the selection -of a lot by them and the determination of its limits it became her “ burial lot ” within the meaning of those words as used in the fifth clause of her will. It is the lot that is to be improved and fitted up by the money appropriated in the sixth clause, and that is there designated “ said lot,” “ said ” being used to render it more certain that the burial lot mentioned in the fifth clause is the one referred to in the sixth. The erection of a vault is a part, at least, of the fitting up that was contemplated. The fact that provision is made in the seventh clause for improving the burying-ground as a whole is evidence that it was not the intention to devote any part of the money mentioned in the sixth clause to that object. Provision is also made in the sixth clause for erecting a suitable monument to the memory of the testatrix “ in the family burying-ground.” The limitation of its location to the family burying-ground raises the query whether it may be located on some suitable spot within the ground outside her burial lot, or whether it must be placed upon that lot. When the monument is erected it will become a part of the land (Sabin v. Harkness, 4 N. H. 415) ; and if it is placed on her lot, the provision made in the fifth clause for the repairs of the lot will insure necessary repairs of the monument. If it is placed elsewhere, there will be no provision for that purpose. It is improbable that the testatrix would omit to make provision for the necessary repairs of so costly an object when she had the subject of repairs under consideration. The fact that the only provision made for repairs relates to the lot tends to show that she intended the monument should become a part of the lot, and understood the trust fund would preserve it and other appurtenances of the lot. Such location is in accordance with the usual custom. Generally, one purpose of a monument is to mark the spot where' the ashes of the deceased repose. It is accordingly found that the sum mentioned in the sixth clause was designed to be used in fitting up and improving the lot selected by the executors for the burial of the testatrix and in erecting upon it a suitable monument to her memory. The meaning of the seventh clause is apparent. It requires the executors to expend the residue of the estate in improving the family burying-ground as a whole, according to their discretion. If Alfred T. Joy makes an addition to the ground, as he agreed to do by the acceptance of Mrs. Griffith’s deed of November 10,1870, *260 the money may be used in improving the original ground and the addition indiscriminately ; but it is not the duty of the executors to enter into controversy to secure such addition. There is nothing in the will tending to show that she intended to impose a task upon them which she herself had failed to undertake for so many years. It is not suggested, nor is it probable, that the addition is needed to provide a suitable burial lot for the testatrix. If the addition is not made, the executors should make the improvements upon the ground as it was at the decease of the testatrix. The evidence offered by the defendant was properly excluded. Ordway v. Dow, 55 N. H. 11; Raynes v. Raynes, 54 N. H. 201; Hoitt v. Hoitt, 63 N. H. 475. Case discharged. Smith, J., did not sit: the others concurred.