1854 Trustees Meeting Minutes, Volume 2, 1831.005.002

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Trustees Records, Volume 2, 1854 (page 001)
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Trustees Records, Volume 2, 1854 (page 001)

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At a meeting of the Trustees of Mount Auburn Cemetery, holden. . it was

Voted. That the sum of fifteen thousand dollars be appropriated for the purchase of three marble statues, to be prepared and executed under contracts to be made with proper artists, said statues to be those of persons distinguished in American History. But this vote is subject to the following conditions viz: first. that it shall be approved in writing by five at least of this board of trustees; and second that the professional opinions of C. P. Curtis Esqr. and the Secretary on the subject of the legality of this appropriation by this board shall be taken in writing and found to sustain the legality of such appropriation Attest. Henry M. Parker. Secretary.

_ Opinion. _

The subject thus submitted to us involves two distinct questions; first, whether the appropriation be in itself legal, and second, whether if legal the Trustees are authorized to make the appropriation

There seems to be no room for doubt as to the second question. By section 4th of the Charter of this Corporation it is provided that "the said Trustees shall have the general management, superintendence and care of the property expenditures business and prudential concerns of the Corporation, and of the sales of the lots in said Cemetery, and they shall make a report of their doings to the Corporation at their annual meeting." If the Corporation funds can be prop-

Last edit almost 3 years ago by Elizabeth Casner
Trustees Records, Volume 2, 1854 (page 002)
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Trustees Records, Volume 2, 1854 (page 002)

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erly applied to the purchase of Statuary, - these words are large enough to show that the Board of Trustees is. the proper body to make the appropriation, and contract for the statues. Can the funds be properly so applied?

The present Corporation took the conveyance of the "Garden and Cemetery" not as an ordinary purchase of land by a Corporation for the purpose of establishing a Cemetery, but upon sundry special trusts, which limit and restrain the full liberty of the Corporation in the use of the property and its proceeds. These trusts are set forth in the tenth section of the Charter, and to that section our remarks will be principally confined; but some additional light may be derived in the interpretation of it from a part of sections two and six. From these it appears that the "Proprietors" hold the land (§2.) "upon the same trusts, and for the same purposes as the said Massachusetts Horticultural Society held the same" by virtue of the Statute of 1831. Chapt. 69; and (§6) "all the rights, powers and authorities, trusts, immunities and privileges conferred upon the said Society" by said act were to be "transferred to and exercised by "the new Corporation. These provisions are important, because the Mass. Hort. Society might be called upon to enforce the execution of the trusts under the tenth section, and if there should seem to be any doubt as to the construction of the language, the actual interpretation formerly given by that Society to its own charter, would if similar to the measure now pro-

Last edit about 3 years ago by Elizabeth Casner
Trustees Records, Volume 2, 1854 (page 003)
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Trustees Records, Volume 2, 1854 (page 003)

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posed, serve in some degree as an answer to any present objection from that quarter. And even if no interpretation had been given by the Society itself, or its officers, to the Act of 1831, still the very language of that Act may serve to enlarge it or diminish the meaning of the present Company's charter.

It is obvious that the Corporation derives no power to appropriate monies from the proceeds of sales of lots in the original cemetery to the purchase of statuary, from the ninth section. Under that section, they may undoubtedly take statuary or money for the purchase of statuary, by bequest or donation and contract for its preservation in the Cemetery. But the words of the Act in that section are much larger than those in the tenth, and can only have a remote bearing upon the construction of the latter, as shewing what kind of "embellishments" the legislature considered appropriate to the Cemetery.

Coming then to the tenth section, we find that it provides that the portion of the proceeds of sales to be retained by the Proprietors of the Cemetery. "shall be forever de"voted and applied to the presentation, improvement and em"bellishment and enlargement of the said Cemetery and Garden " and the incidental expenses thereof and to no other purpose "whatsoever". These last words are strong words of restraint upon the Corporation and should lead the Trustees to see that every appropriation made by them comes strictly under one or another of the heads thus mentioned.

Last edit about 3 years ago by Elizabeth Casner
Trustees Records, Volume 2, 1854 (page 004)
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Trustees Records, Volume 2, 1854 (page 004)

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And it is clear that the appropriation for the purchase of statuarey can come fairly and fully under the one of these heads, only viz. that of the embellishment of the Cemetery.

We understand that it is not enough to bring an apropriation under this head, that it should be for the purpose of making the Cemetery a more attractive resort; a collection of mere curiosities or relics of ancient times, however much they might "embellish" the Cemetery place, in one sense, would not, in our judgment be such "embellishments" of the Cemetery as this section of the Act contemplates. Neither would the establishment of an historical library, though that is in some sense the best monument to the worthy dead. Yet we suppose that, under the ninth section, you might properly allow the heir of any of our military heroes to hang the trophies of his father's victories above a mural tablet in the Chapel, and the same might afterwards be given in trust to your care. Other memorials of the worthy dead might thus gradually accumulate under your care, and eventually the number of these relics of various kinds may make up such a collection as you would not be authorized, in the first instance, to establish, as an independent thing, as an embellishment of the Cemetery. An "embellishment" of the Cemetery in the 10th section means, we think, an embellishment appropriate to and in harmony with the place.

These distinctions, though perhaps not at first obvious, are important. Smaller ones have been made the foundation of decisions in many instances connected with the execution of trusts. In one

Last edit about 3 years ago by Elizabeth Casner
Trustees Records, Volume 2, 1854 (page 005)
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instance where property was given in trust to repair a chapel, a grave doubt was expressed as to the propriety of expending any portion of the large accumulated income in the fittings up of the Chapel. 1 Anstruther's Reports ___ Attorney General vs. Foyster. And funds for a "grammar school" (which means, in England, technically, a school for instruction in English Greek and Latin) cannot though amply sufficient, be applied to the support of instruction in the German and French languages in connection with the other branches. Attorney General vs. Earl of Mansfield, 2 Russell 513. And in this country the Administratrix of a "good estate", though allowed to expend nearly $358.75 in funeral expenses, the principal part of which was for a tombstone over his body, was not allowed a small sum paid for the painting a portrait of the deceased. 14 Sery v. Rawle ___ McGlinsey's Appeal. Had this monument borne upon its side in bas relief the features or figure of the deceased, there can be no doubt that it would have been allowed.

Reasoning from the analogy of such decisions we might well say that it by no means follows that as a matter of course, that because you have properly spent money for a Chapel in which Statues may be becomingly placed, you may go on to provide Statues for the Chapel. The Chapel as one thing is complete, and the purchase of statuary, if a proper application of the trust fund at all, must be an independent and separate act and exercise of your power. It is worth noting here, that Judge Story in , in a written report on the subject of contem-

Last edit about 3 years ago by Elizabeth Casner
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