society, association or corporation, in trust or otherwise more than one-half part of his or her estate after the payment of his or her debts (and such devise or bequest shall be valid to the extent of one-half and no more).79 The act of 1860 has now been transferred to the Decedent Estate Law in the new revision of the statutes.8 80 This act of 1860 may be invoked not only by the persons therein specified but by any one affected adversely.81 But the benefit of the act of 1860 may be waived by all concerned,82 and this construction must apply to that act in its new position in the Consolidated Laws, for there is no change made in the language of the statute.

The act expressed in this section authorizes gifts to take effect in præsenti, and bequests to take effect in futuro, to incorporated colleges and other literary incorporated institutions to be held in trust for the purposes specified in this section;83 provided that the amount of the property does not exceed the amount which the corporation is otherwise permitted by law to take and hold, and that the property vest within the time prescribed by our statute against perpetuities.85

84

It will be observed that Mr. Attorney General is charged by the preceding section with the enforcement of all charitable or indefinite public uses. In order to enable the State to have a complete discovery and control over charities publicity is necessary, and consequently the record of all grants and deeds to charitable uses should be made compulsory by law. Such record is not necessary where a charity is in possession and for many purposes it is to the benefit of the charity to have the gift, especially of personal property, escape detection. This has always been the case in the history of charitable corporations. The Board of Statutory Consolidation did not, however, feel empowered to make this change in the law.86

79 See Fowler, Charitable Uses, 74, 75; St. John v. Andrews Institute, 191 N. Y. 254; Amherst College v. Ritch, 151 N. Y. 282, 333; Jones v. Kelly, 170 id. 401; Matter of Stone, 15 Misc. Rep. 317; Matter of Crane, 12 App. Div. 271, 159 N. Y. 557.

80 See above, p. 554.

81 Robb v. Washington & Jefferson College, 185 N. Y. 485; Matter of Counrod, 27 Misc. Rep. 475; Rich v. Tiffany, 2 App. Div. 25; cf. Matter of Eldridge, 55 Misc. Rep. 636; St. John v. Andrews Institute. 117 App. Div. 698, 191 N. Y. 254.

82 Matter of Stillson, 85 App. Div. 132; Amherst College v. Ritch, 151 N. Y. 282; cf. Scott v. Ives, 22 Misc. Rep. 749.

83 Matter of Griffin, 167 N. Y. 71, 76; Holmes v. Mead, 52 id. 332, 339; Adams v. Perry, 43 id. 487, 494.

84 Matter of McGraw, III N. Y. 66,90.

85 Robb v. Washington & Jefferson College, 103 App. Div. 359, 185 N. Y. 191 N. Y. 254.

86 See note 17, Appendix I, infra.

§ 114-a. Trusts for care of cemetery lots, etc.- Gifts, grants and devises of real property, in trust for the purpose of perpetual care and maintenance, improvement or embellishment of private burial lots in cemeteries, and the walks, fences, monuments, structures and tombs thereon, are permitted and shall be deemed to be for charitable and benevolent uses; and shall not be deemed to be invalid by reason of any indefiniteness or uncertainty of the persons designated as beneficiaries in the instrument creating the same, nor shall they be deemed invalid as violating any existing laws against perpetuities or suspension of the power of alienation of title to property. But nothing herein contained shall affect any existing authority of the courts to pass upon the reasonableness of the amount of such gift, grant or bequest.

Formerly chapter 219, Laws of 1909:

CHAP. 218.

AN ACT to amend the personal property law and the real property law, in relation to trusts for the care of cemetery lots, monuments and their appurtenances.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. Chapter forty-five of the laws of nineteen hundred and nine, entitled "An act relating to personal property, constituting chapter forty-one of the consolidated laws," is hereby amended by adding thereto, after section thirteen, a new section, to be section thirteen-a thereof, to read as follows:

§ 13-a. Trusts for care of cemetery lots, etc.— Gifts, grants and bequests of personal property, in trust for the purpose of perpetual care and maintenance, improvement or embellishment of private burial lots in cemeteries, and the walks, fences, monuments, structures and tombs thereon, are permitted and shall be deemed to be for charitable and benevolent uses; and shall not be deemed to be invalid by reason of any indebtedness or uncertainty of the persons designated as beneficiaries in the instrument erecting the same, nor shall they be deemed invalid as violating any existing laws against perpetuities or suspension of the power of alienation of title to property. But nothing herein contained shall affect any existing authority of the courts to pass upon the reasonableness of the amount of such gift, grant or bequest.

§ 2. Chapter fifty-two of the laws of nineteen hundred and nine, entitled "An act relating to real property, constituting chapter fifty of the consolidated laws," is hereby amended by adding thereto, after section one hundred and fourteen, a new section, to be section one hundred and fourteen-a thereof, to read as follows:

§ 114-a. Trusts for care of cemetery lots, et cetera.- Gifts, grants and devises of real property, in trust for the purpose of applying the proceeds or income thereof to the perpetual care and maintenance, improvement or embellishment of private burial lots in cemeteries, and the walks, fences, monuments, structures and tombs thereon, are permitted and shall be deemed to be for charitable and benevolent uses; and shall not be deemed to be invalid by reason of any indefiniteness or uncertainty of the persons designated as beneficiaries in the instrument creating the same, nor shall they be deemed invalid as violating any existing laws against perpetuities or suspension of the power of alienation of title to property. But nothing herein contained shall affect any existing authority of the courts to pass upon the reasonableness of the amount of such gift, grant or devise. § 3. This act shall take effect immediately.

Comment. We have noticed before in the text under section 113 of this act that the erection and maintenance of family tombs and cemeteries were not charitable uses either at common law or under this statute. This section changes the law. Such gifts were, however, formerly sometimes authorized by special acts of the Legislature.87

The language of this section is too restricted; it no doubt was intended to authorize trusts for the perpetual care and maintenance of family tombs and mausoleums as well as for the care of burial lots. But unless the lot is regarded as the primary factor, or is the property in fee of the family owning the tomb, the tomb itself might not fall within the purview of this act, as it would not be a part of the realty.88

Chapter 274, Laws of 1909. Chapter 274, Laws of 1909, added section 45089 to the Real Property Law, making it unlawful to take or set apart land for cemetery purposes without the consent of the supervisors of certain counties adjacent to the city of New York.

87 Supra, p. 543; Read v. Williams, 125 N. Y. 560; Matter of De Witt, 113 App. Div. 790; Matter of Waldron, 57 Misc. Rep. 275.

88 See above, p. 169.
89 See below, § 450.

§ 115. Certain grants for charitable uses regulated. 1. Any person desiring, in his lifetime, to promote the public welfare by founding, endowing and having maintained a public library, museum or other educational institutions, or a chapel and crematory, within this state, may to that end and for such purposes by grant, in writing, convey to a trustee, or any number of trustees, named in such grant, and to their successors, any real property, belonging to such person, and situated or being within this state.

2. The person making such grant may therein designate: (1) The nature, object and purposes of the institution to be founded, endowed and maintained.

(2) The name by which it shall be known.

(3) The powers and duties of the trustee or trustees and the manner in which he or they shall account, and to whom if accounting be required; but such powers and duties shall not be held to be exclusive of other powers which may be necessary to enable such trustee or trustees to fully carry out the object of such grant.

(4) The mode and manner, and by whom, the successors to the trustee or trustees named in the grant are to be appointed.

(5) Such rules and regulations for the management of the property conveyed as the grantor may elect to prescribe; but such rules shall, unless the grantor otherwise prescribe, be deemed advisory only, and shall not preclude such trustee or trustees from making such changes as new conditions may from time to time require.

(6) The place or places where, and the time when, the building or buildings necessary and proper for the institution shall be erected, and the character and extent thereof. The person making such grant may therein provide for all other things necessary and proper to carry out the purposes thereof, and especially may such person provide for such lectures, exhibitions, instruction or amusement in connection with such institution as he may deem desirable.

3. The trustee or trustees named in such grant and their successors, may in the name of the institution, as designated

in such grant, sue and defend, in relation to the trust property and in relation to all matters affecting the institution. endowed and established by such grant.

4. The person making such grant, by a provision therein, may elect, in relation to the property conveyed and in relation to the erection, maintenance and management of such insti tution, to perform, during his life, all the duties and exercise all the powers which, by the terms of the grant, are enjoined upon and vested in the trustee or trustees therein named. If the person making such grant, and making the election aforesaid, be a married person, such person may further provide that if the wife of such person survive him, then such wife, during her life, may, in relation to the property conveyed, and in relation to the erection, maintenance and management of such institution, perform all the duties and exercise all the powers, which, by the terms of the grant, are enjoined upon and vested in the trustee or trustees therein named, and in all such cases the powers and duties conferred and imposed by such grant upon the trustee or trustees therein named, shall be exercised and performed by the person making such grant, or by his wife during his or her life, as the case may be; provided, however, that upon the death of such person, or his surviving wife, as the case may be, such powers and duties shall devolve upon and shall be exercised by the trustee or trustees named in the grant and their successors.

5. The person making such grant may therein reserve the right to alter, amend or modify the terms and conditions thereof and the trusts therein created, in respect to any of the matters mentioned or referred to in paragraphs numbered one to six inclusive of subdivision two hereof; and may also therein reserve the right, during the life of such person, of absolute dominion over the rents, issues and profits of the real property conveyed, without liability to account therefor in any manner whatever, and without any liability over against the estate of such person; and if any such person be married, such person may, in said grant, further provide that if his wife survive him, then such wife, during her life,