dissenting.
I respectfully dissent to the rendition of a take-nothing judgment in this cause. I would hold that the will of Mrs. Schlosberg sets up a “mixed trust”1 and, under settled rules applicable thereto, we should carry out her testamentary intent by upholding the charitable element of the trust providing for upkeep of the entire mausoleum.
I agree with the holding of the Court that a perpetual trust for the upkeep of a private burial plot is not considered to be for charitable purposes, and therefore the constitutional inhibition against perpetuiti-es prohibits the enforcement of such a trust. However, the constitutional inhibition against perpetuities does not apply if the trust is established for charitable purposes. See: Boyd v. Frost Nat. Bank, 145 Tex. 206, 196 S.W.2d 497 (Tex.1946); Atkinson v. Kettler, 372 S.W.2d 704 (Tex.Civ.App.—Dallas 1963), aff’d 383 S.W.2d 557 (1964); Rice v. Morris, 541 S.W.2d 627 (Tex.Civ.App.—Corpus Christi 1976, writ dism’d by agr.). As a general rule, a trust for the *680maintenance of a public cemetery is charitable. Restatement (Second) of Trusts § 374, Comment h (1959); G. Bogert, The Law of Trusts and Trustees § 377 (2nd ed. 1977). Mrs. Schlosberg clearly provided that any trust funds which could not be legally spent for the upkeep of her private crypt should be devoted to the charitable purpose of upkeeping the mausoleum as a whole.
Article 912a-15,2 expressly authorizes a trust for a public cemetery and exempts it from the rule against perpetuities. This legislative designation of a perpetual care trust is consistent with the holdings of Texas courts that “charitable purposes” include purposes the accomplishment of which would be beneficial to the community. See: Boyd v. Frost Nat. Bank, supra; Powers v. First Nat. Bank of Corsicana, 138 Tex. 604, 161 S.W.2d 273 (1942); Moore v. Sellers, 201 S.W.2d 248 (Tex.Civ.App.—San Antonio 1947, writ ref’d).
I therefore agree that the constitutional prohibition against perpetuities prevents a perpetual care trust being established for the maintenance of a private burial plot. It is the result that the Court achieves in applying the rule against perpetuities to this particular trust that I disagree with. The Court appears to ignore the basic rule of will construction which requires us to determine the testatrix’s intent and to effectuate that intent insofar as is legally possible. Sellers v. Powers, 426 S.W.2d 533 (Tex.1968).
The will of Mrs. Schlosberg, which was originally drawn in its present form by petitioner Foshee in his capacity as attorney for Mrs. Schlosberg, provides for a “mixed trust” in that it provides for both private and charitable purposes. The will provides in part:
I give, devise and bequeath the sum of Forty Thousand Dollars ($40,000.00) in cash to Republic National Bank of Dallas, Texas, in trust, as Trustee of that certain Trust created on May 19, 1948, by and between Hillcrest Mausoleum, Inc. and Republic National Bank of Dallas, known as “Hillcrest Mausoleum Special Gift Trust Fund,” such sum to become a part of said Trust Fund and to be administered in perpetuity as a part thereof and under the terms and provisions of said Trust indenture. I direct that the entire income, or the maximum amount of such income that is permitted under the laws of the State of Texas, from this gift, be expended for keeping, beautifying, and for the purchase of flowers for the burial space of my mother Sallie Alwida Schlos-berg, my brother Sylvan S. Schlosberg and myself in the room which I own in Hillcrest Mausoleum. I further direct that flowers be purchased from this income and placed in, on or around said room weekly or at least semi-monthly depending upon the amount of income available for such purpose. The remainder of such income, if any, after expending the maximum amount allowed by the laws of this state for the purpose aforesaid shall be devoted to and spent for the general upkeep and beautification of the entire Mausoleum. (Emphasis added.)
The summary judgment record establishes that attorney Foshee attempted to draw this provision of the will to conform to Article 912a-18, which authorizes a special care trust fund for upkeep of a private crypt. The statute requires that a minimum of 25 percent of the proceeds or income from a “special care trust fund” be devoted to the general upkeep and beautification of the entire cemetery. This minimum requirement is for a charitable public purpose and, therefore, does not violate the rule against perpetuities. .Mrs. Schlosberg’s will, although directing that as much as was legally possible be spent for the upkeep of her private crypt, expressly provides that all other income be expended for the general upkeep of the entire mausoleum. It would totally defeat her expressed intent if this income devoted in the will for upkeep of the entire mausoleum should revert under the residuary clause to Foshee or his family.
*681Under settled rules applicable to a “mixed trust,” the funds legally set aside for the charitable purpose should be upheld. This precise question was considered in the commentary to Section 398 of the Restatement (Second) of Trusts at page 295 where it is stated:
Thus, if a testator bequeaths a large sum of money in trust to apply a part of the income in keeping the testator’s grave in repair, and to apply the balance of the income for charitable purposes and the intended trust for the repair of the grave is invalid as a perpetuity (see § 124), the court will determine the sum necessary to yield an income sufficient to care for the grave, and the trust as to so much of the principal sum will be held invalid, but the charitable trust of the balance will be upheld. (Emphasis added.)
See also : 4 Scott on Trusts § 399.2, at 3095 (3rd ed. 1967).
The holding in Carr v. Jones, 403 S.W.2d 181 (Tex.Civ.App.—Houston 1966, writ ref’d, n.r.e.), is distinguishable. There the entire trust failed because the charitable and non-charitable purposes were mingled and the amount to be expended for specific charitable purposes could not be ascertained. The clear import of this holding is that there would have been a contrary result if the will in question had given directions as to the amount of money to be spent on the charitable purpose. See: Rice v. Morris, supra. Because the will of Mrs. Schlosberg tracks the language of Art. 912a, section 18, it is apparent that she intended by this provision that at least 25 percent of the trust be spent for the charitable purpose of upkeeping the entire mausoleum.
The legislature has enacted Article 1291b to take care of the exact situation presented here. This statute provides:
Section 1. Any interest in real or personal property that would violate the Rule Against Perpetuities shall be reformed, or construed, within the limits of that Rule, to give effect to the general intent of the creator of that interest whenever that general intent can be ascertained. This provision shall be liberally construed and applied to validate such interest to the fullest extent consistent with such ascertained intent.
Sec. 2. To effectuate the provisions hereof, all courts of this state are, within their otherwise jurisdictional limits, hereby granted the power to reform or construe interests in real or personal property, as provided in Section 1 hereof, in accordance with the doctrine of cy pres.
Sec. 3. If an instrument violates the Rule Against Perpetuities, but it can be reformed or construed in accordance with the provisions of this Act, it shall not be declared totally invalid. Rather, the provisions thereof that do not offend the Rule shall be enforced, and only the provisions thereof that do violate, or might violate, the Rule shall be subject to reformation or construction under the doctrine of cy pres within the terms of this Act.
Sec. 4. This Act shall apply only to inter vivos instruments and wills taking effect after the Act becomes effective, and to appointments made after the Act becomes effective, including appointments by inter vivos instruments or wills under powers created before the Act becomes effective. The Act shall apply to both legal and equitable interests. (Effective September 1, 1969)
The clear purpose of the statute is to require a court to reform the bequest to give effect to the general intent of the testatrix. The will of Mrs. Schlosberg provides that any income remaining after expending the maximum allowed by law on her specific crypt should be spent for the general upkeep of the entire mausoleum. We should carry out the expressed testamentary intent of Mrs. Schlosberg by providing that the funds which could not be legally spent for her private purpose should be devoted to the charitable purpose of providing upkeep for the mausoleum as a whole. In Re Fletcher’s Estate, 280 N.Y. 86, 19 N.E.2d 794 (1939). This charitable purpose does not violate the constitutional prohibition against perpetuities.
*682I would affirm the judgments of the courts below.
POPE, J., joins in this dissenting opinion.
. A “mixed trust” is one which possesses private and public elements and is partly charitable and partly for the benefit of private individuals or non-charitable objects. Rice v. Morris, 541 S.W.2d 627, 631 (Tex.Civ.App.—Corpus Christi 1976, writ dism’d by agr.).
. All statutory references are to Texas Revised Civil Statutes Annotated.