delivered the opinion of the court:
The theory of the bill in this case seems to be, that the Springdale Cemetery Association is a corporation organized for the administration of a charitable trust, and that those who now own or may hereafter purchase' burial lots in the cemetery are the beneficiaries of the trust; that the association not only holds the lands purchased or acquired by it in trust for cemetery purposes, but that it holds all revenues arising from the sale of burial lots or from other sources upon a like trust, and that none of its revenues can be lawfully devoted to any other purpose; that the complainants and the other lot owners, having the beneficial title to all its property and assets, have the right, in equity, to call it to account for any mal-administration of its trust, and, with the aid of a court of equity or otherwise, to control the management of its affairs. The violations of the trust charged in the bill consist mainly in having heretofore distributed a considerable portion of its revenues, derived from the sale of burial lots or from other sources, to its members for their private and individual use, and it is alleged that it proposes and threatens to distribute to its members, for their private and individual use, other large portions of its revenues derived from like sources. From these premises the following conclusions are sought to be reached : (1) That the lot owners form the constituency entitled to elect directors and control the affairs of the association, and that the court should aid them in the exercise of that right; or, (2) if that position is not sustained, that for violations of its trust the association and its directors and officers should be removed and a new trustee appointed to execute the trust; or, (3) if the court should not be disposed to grant that measure of relief, that the association and its officers and directors be required to account for all assets and revenues which have heretofore come into their hands, and that they be charged with the same as trust funds, and be required to administer the trust according to the provisions of the charter of the association, and under the direction, control and supervision of a court of chancery.
There is nothing, so far as we are aware, in the nature or objects of a cemetery association which necessarily imposes upon its property, assets or revenues a trust character. That, manifestly, must depend upon the terms of the charter or other instrument under and by virtue of which its property, assets and revenues are acquired and held. If a trust exists, it is conventional; and whether one exists in the present case, and its nature and terms, must depend upon the provisions of the act of the General Assembly by which the defendant association was incorporated.
By the first section of the act, Hervey Lightner and three others, and their associates, successors and assigns, were created a body corporate and politic, under the name and style of “The Springdale- Cemetery Association,” and were invested with the ordinary attributes and powers of a corporation, and among them the power to take and hold land .in fee simple, and personal property, and to sell, dispose of and convey the same. By the second section it was provided that the affairs of the corporation should be managed by a board of directors, consisting of not less than three nor more than five persons, to be elected annually, and provision was also made for the time and manner of their election. The third section authorized the corporation, by its by-laws, to provide for other officers, and prescribe the manner of their election or appointment and define their terms of office and duties. By section 4 the board of directors were authorized to appoint a president of the board, and also a secretary and treasurer, who should hold their respective offices for one year and until the appointment and qualification of their successors. The duties of these officers were prescribed, the treasurer being required to give bond, and authority being also given to the corporation to require bonds of any of its other officers, and in case of vacancy in the board between the annual meetings, the remaining members of the board were authorized to fill the vacancy. Section 5 was as follows:
“The corporation shall have power to take and hold, by purchase, gift, grant, devise or otherwise, any quantity of land in the county of Peoria, not exceeding three hundred acres, for the sole purpose of a cemetery and the interment of the dead; and when the corporation shall have acquired such land, and the title thereto shall have vested in it, or in trustees for its use and benefit, for cemetery purposes, as contemplated by this act, the same shall be forever thereafter exempt from all assessments and taxation, and from seizure and sale on execution, or by any order or decree of any court, or from any appropriation of the same or any part thereof for public uses or purposes; and the burial lots into which the land may be divided shall also be exempt from all assessments, taxation, and seizure or sale upon execution or by order or decree of any court, and from any appropriation to public purposes, whether the said lots shall be held and owned by the said corporation or its grantees or assigns. The corporation shall have no power to sell, alienate or in any way convey or appropriate the said land for any other than cemetery purposes, nor shall owners of lots have power to alienate, convey or in any way appropriate any of the lots on said land for any other use or purpose than for the interment of the dead: Provided, hoioever, that the corporation may mortgage or convey, in trust, any part of said land which shall not be laid out in lots, for the purpose of raising and securing money to pay the expenses of laying out, fencing and improving said land and fitting it for cemetery purposes and to defray the expenses of the association; but no lots on the part of the land so mortgaged or conveyed in trust shall be sold and conveyed by the corporation until the mortgage or trust deed shall be, as to such lots, discharged, so as to be no incumbrance on such lots.”
Section 6 prescribed the mode for the conveyance of burial lots from the corporation to individuals. Section 7 provided for the platting and laying out of the land into burial lots and for the recording of the plats. Section 8 prescribed the mode in which lot owners may alienate their lots. Section 9 required the association to prepare the land for interment by laying it out into lots, alleys, avenues and carriage ways. Section 10 was as follows:
“Out of the proceeds of the sales of lots the corporation may first pay the purchase money of the land purchased for cemetery purposes, and the expenses of grading, laying out and fencing the same, and all necessary incidental expenses, with interest; and after the payment of such purchase money, expenses and interest, the corporation shall provide, by its by-laws, for appropriations out of the proceeds of sales of lots to keep the grounds in repair and in good order: Provided, however,.that nothing herein contained shall make it requisite for the corporation to pay the whole of such purchase money, expenses and interest before extending the laying out, grading and platting other parts or portions of said land, from time to time, as said corporation shall deem it necessary and proper.”
Section 11 gave to lot owners, a right of way, at all times, over the roads, alleys, avenues and carriage ways provided by the corporation. Section 12 provided that no road or highway should be ever laid out or located over the lands of the association. By section 13 the membership of the corporation was limited to not less than five nor more than fifteen persons, and the corporation was given power to determine the manner in which persons might become members, and to regulate the mode of transferring and conveying the shares and interest of its members. Section 14 was as follows :
“In case of the decease of any member of the corporation intestate, or, if testate, failing to dispose of his or her share or interest in the said land, so that the same shall descend to several of his heirs or personal representatives, the persons so taking such shares or interest shall be tenants in common of such share or interest, and may depute and authorize one of their number to act in their behalf in the meetings and affairs of the corporation, and the persons so deputed shall have all the powers of any other member. The proper courts having jurisdiction to order or decree sales of estates of decedents may, on the petition of one of the persons who take the share or interest of a deceased member, order the sale of the whole of the share or interest of the decedent, in the same manner that the estates of deceased persons are sold for the payment of debts; and the said courts shall inquire into and determine what part, if any, of the proceeds of such sales shall be paid to such corporation on account of the claim, legal or equitable, of the corporation against such share or interest, to pay any debts or to contribute to the funds of the corporation. The residue, after paying the costs and expenses of the proceedings and of the sale, shall be paid over to the persons entitled thereto as such heirs or personal representatives, but in no case shall there be a partition among such heirs and tenants in common of any share or interest, but the same shall remain an entirety for all purposes of the business of the corporation: Provided, however, that if several persons become the joint owners of any share or interest, by descent or otherwise, each joint owner may convey his interest therein to any one of the co-tenants.”
Section 15 provided as follows: “It is hereby declared that the title to said land, when the terms and provisions of this act shall be complied with, shall be vested in the corporation as a trustee, and the corporation shall hold the same in trust for the purpose of interment and a repository for the dead forever; and the said corporation and the members thereof are hereby forever prohibited from selling, conveying or in any way alienating or appropriating any part of the land so laid out and platted, as herein provided, for any other use or purpose whatsoever than is contemplated by this act.”
Section 16 made it lawful for the corporation to take and hold any grant or bequest of money or property in trust, to apply the same, or the income thereof, under the direction of the board of directors, for the improvement of the cemetery or any portion thereof, or in the erection and preservation of any tomb or monument, according to the terms of such grant or bequest, and gives any court having equity jurisdiction in the county of Peoria, power to compel the performance of any such trust. Section 17 made the willful opening of any tomb for the purpose of robbing it of any clothes or materials placed therein, a felony, and provided for its punishment, and section 18 declared the act to be a public law. Private Laws of 1855,. p. 460.
From this resume of the act it will be observed that while the title of the land purchased by the association for cemetery purposes, after the terms and provisions of the act have been complied with, is declared to be in the corporation as a trustee, and the corporation is required to hold the same in trust for the purpose of interment and a repository for the dead forever, a totally different provision is found "in relation to the disposition to be made of the revenues arising from the sale of burial lots. From the moneys thus realized the corporation is required to pay, first, the purchase price of the land and the cost and expenses of the improvement thereof, with interest; and second, it is required to appropriate, out of the proceeds of sales of lots, a sufficient sum to keep the grounds in repai# and good order. It may be that this latter provision should be so construed as to require the setting apart of such portion of the proceeds of the sale of lots that, when all of the lots are sold and disposed of and that source of revenue no longer available, a fund will be accumulated sufficient to provide for keeping the grounds in good order and repair,—not merely for the time being, but for all time. But it is clear, from all the provisions of the act, that after the portion of the proceeds of the sales of lots necessary for the purposes aforesaid is paid out or appropriated, the surplus belongs to the members, as representing their share or interest in the corporation. No other appropriation of such surplus is made by the charter, and that it may lawfully be paid over to the members sufficiently appears from the provisions of section 14. That section directs that in case of the sale of the share of a deceased member under order of court, the proceeds, after reserving sufficient to satisfy the claim, legal and equitable, of the corporation against the share, to pay any debts or to contribute to the funds of the corporation, shall be paid over to the heirs or personal representatives of the deceased member.
On recurring to the bill, it will be noticed that no charges are made of a failure to appropriate a sufficient sum of money to keep the grounds in good order and repair up to the present time, or that there has been any failure to keep them in good order and repair. True, it is charged that certain lots which have been sold and conveyed to individual lot owners, and in some of which the dead have been buried, have been allowed to grow up to weeds and other vegetation, so as to have become unsightly; but we are inclined to the opinion that, upon a fair construction of the act, the association is not charged with the duty of caring for and keeping in repair the lots which have been sold, and which have become the property in fee of the lot owners. It is for them to control their own lots, and to improve, beautify and ornament them as they may see fit. They may erect upon them monuments or not, as they choose, and if they allow the lots to become unsightly from the growth of weeds and other vegetation, their doing so would seem to be a matter for which they alone are responsible. By the provisions of section 16 of the act, any lot owner may provide for the perpetual care of his lot by granting or bequeathing a sufficient sum of money or other property to the association in trust for that purpose, and provision is made for compelling the performance of such trust. But in the absence of such trust fund there is no provision in the charter, so far as we can see, which makes it the duty of the corporation to keep in repair and good order lots which it has sold and conveyed to private lot owners.
Nor are we able to find in the bill any sufficient allegation that the association has failed to appropriate the portion of its revenues required by its charter to constitute a fund for keeping the cemetery grounds in repair and good order in the future. The allegation is, that the directors of the association intend to set aside a part, only, of the income of the cemetery for the care of the grounds other than the lots sold, but there is no allegation that the part of the income thus proposed to be set aside is not adequate, the insistence being that all the income of the association is a trust fund and should be set apart, and that the distribution of any part of it to the members of the association is a diversion and misapplication of a fund which should be held in trust. It thus appears that the bill contains no sufficient averments of any unlawful appropriation by the directors of any of the revenues or funds of the association.
In view of the interpretation we are disposed to place upon the charter of the association, it seems plain that the bill makes no case entitling the complainants to relief in any of the forms prayed for. Neither they nor the other lot owners occupy the position, either at law or in equity, of members of the association, so as to be entitled to elect directors, or to take upon themselves, in any form, the management of its affairs. By the charter the directors are to be elected by the members of the association, and, as we have seen, the number of members after the organization of the corporation is limited to not less than five nor more than fifteen persons,—a limitation which necessarily excludes the possibility of reckoning the lot owners, which the bill alleges number more than two thousand, among the members. Furthermore, the corporation is given power, after its organization, to determine the manner in which persons may become members, and regulate the mode of transferring and conveying the shares or interests of its members, and there is no averment that the corporation, even if it had power to do so, had ever made any regulation by which lot owners were to be given the position and rights of members. Nor does the bill make any case for the removal of the corporation and its officers from the trust and the appointment of another trustee in their stead, or even for the interposition of a court of equity to supervise and control the execution of the trust by the corporation itself. The bill fails to show that the association, or its directors and officers, so far as they are shown to occupy a trust relation at all, have been guilty of abusing or mal-administering their trust. It follows that no title to equitable relief is shown.
There being no error in the decree of the circuit court sustaining the demurrer and dismissing the bill for want of equity, the judgment of the Appellate Court affirming the decree will be affirmed.
Judgment affirmed.