The opinion
Marsh, J.
(dissenting). This is an appeal by Litchfield Cemetery Association from a decree of Surrogate’s Court, Herkimer County, which construed the residuary clause of decedent Floyd C. Getman’s will.
In 1956 Clyde L. Getman presented a petition for a construction of the residuary clause of the will of Floyd C. Getman, his brother, who died October 5,1954, leaving a will dated November *262 18, 1944, which provided in the second paragraph: “ Second: All the rest, residue and remainder of my estate, both real and personal, and wheresoever situate, which at the time of my death shall belong to me or be subject to my disposal by Will, I give, devise and bequeath unto my brother Clyde L. Getman, to have and to hold the said estate for and during the term of his natural life. Upon the death of my said brother, Clyde L. Getman, then I give, devise and bequeath my residuary estate aforesaid unto the directors of the Litchfield Cemetery Association of the Town of Litchfield, County of Herkimer, New York, such properties to be received by said Association for the perpetual care of the Getman lot and L. F. Matteson lot in said Litchfield Cemetary.”
A hearing was held upon the petition which requested that the bequest for perpetual care be limited to an amount necessary, according to the rules of the cemetery association, to provide perpetual care for the two lots. Mrs. De Sanyus, secretary treasurer of the cemetery association, testified that the amount determined by the association for the perpetual care of the Getman and Matteson lots is $50 each. Counsel stipulated that Litchfield Cemetery Association is located in the Town of Litchfield which contains no incorporated village, which has no post office and is a farming community.
No decree was entered until the death of Clyde Getman who left property interests of around $14,000. A decree was entered on April 10, 1967, construing the residuary clause to provide only so much of the residuary as fair and reasonable for perpetual care ($300) and permitting the rest to pass as in intestacy.
It was the common-law rule that a bequest in trust for the perpetual care of a cemetery plot violated the Buie Against Perpetuities as not being for a charitable purpose. (Matter of Turk, 128 Misc. 803 .) This was changed by section 114-a of the Beal Property Law and section 13-a of the Personal Property Law (now EPTL 8-1.5): " Trust for cemetery purposes. Dispositions of property in trust for the purpose of the perpetual care, maintenance, improvement or embellishment of cemeteries or private burial lots in cemeteries, and the roadways, lawns, hedges, walks, fences, monuments, structures and tombs in such cemeteries or on such private burial lots are permitted and shall be deemed to be-for charitable and benevolent purposes. Such dispositions are not invalid by reason of any indefiniteness or uncertainty of the persons designated as beneficiaries, nor shall they be invalid as violating any existing rule against perpetuities. Nothing herein contained shall affect any existing *263 authority of the courts to determine the reasonableness of the amount of such disposition. Any cemetery association may act as trustee of and execute any such trust with respect to lots, roadways, lawns, hedges, walks, fences, monuments, structures and tombs both within its own cemetery limits and outside of any cemetery under its control but within the county where such cemetery is located, whether or not such power is included among its corporate powers.”
The respondents, intestate distributees bf decedent, argue that the gift should be limited to the amount necessary for perpetual care. The above section continues the authority of the courts to determine the reasonableness of the" amount as it existed under the case law. (Matter of Baeuchle, 276 App. Div. 925 , affd. 301 N. Y. 582 .)
The will in Matter of Carney ( 206 Misc. 261, 262 ) provided ‘ ‘ I direct my executors to use the balance of my estate for the keeping of my grave and to use the money as they shall see fit for same.” The court held that this was not an absolute gift to the representative in trust for the perpetual care of the grave but only so much as is necessary for such perpetual care. In Baeuchle the will directed the residuary estate be used for the purchase of a plot, erection of a mausoleum and perpetual care of the plot and mausoleum. The court held the testatrix had unmistakably expressed her intent to use the entire residuary for such purposes. The opinion states however, that only sufficient moneys to provide for perpetual care would be paid to the cemetery. This case merely stands for the proposition that a decedent may spend an extravagant amount for a plot and mausoleum if such an intent is clearly expressed in the will.
In Matter of Turk ( 128 Misc. 803 ) $9,000 was left to a city owned cemetery for perpetual care of the graves of a couple of limited means. The city’s normal perpetual care contract would provide such care for $200. The will provided (pp. 805-806): “ (1) After the payment of all my lawful debts and funeral expenses, I give all my property * * * to the Commissioners of Mount Hope Cemetery of Rochester, N. Y. for the purpose of the perpetual care of [graves of decedent and husband] ”. The Surrogate held that the amount was unreasonable for a trust of perpetual care within the meaning of the enabling act (EPTL 8-1.5) and that the surrounding circumstances indicated that testatrix never intended such a large amount to go for perpetual care. Major emphasis was placed on the near impossibility of expending such a large sum upon the modest plots intended to be benefitted.
*264 Matter of Morris ( 227 N. Y. 141, 143 ) dealt with a gift of the residuary estate to “ my executor hereinafter named to pay funeral expenses, say masses and put a modest tombstone over my remains.” There is a statement in the case (p. 144) that ‘ ‘ the court may not cut down the gift because the amount is disproportionate to the purpose.” The court held that what amount was given to the church for the saying of Masses was of no concern to the next of kin as only the testatrix was competent to judge the reasonableness of such an amount.
Morris points to Matter of Arrowsmith ( 162 App. Div. 623 , affd. 213 N. Y. 704 ) for explanation of the distinction between an absolute gift and a direction to expend a specified sum for a given purpose. The court there held that there was an absolute gift and that the added directions were merely precatory and did not create a trust for the limited purposes stated (p. 626): “ It is a well-established rule that whenever a will begins with an absolute gift in order to cut it down, the latter part of the will must show as clear an intention to cut down the absolute gift as the prior part does to make it.”
The gift in the instant case cannot reasonably be construed as an absolute gift to the cemetery to be used for whatever purposes the cemetery directors deem appropriate. It is a gift soley limited to the perpetual care of the plots of decedent and L. F. Matteson. The words following the gift are an absolute limitation upon the gift and impose a trust whose sole object is such perpetual care.
The facts present a clear case for the exercise of the authority to pass on the reasonableness of a gift for perpetual care (EPTL 8-1.5).
This was not an absolute gift to the cemetery association to be used for general cemetery purposes although such a gift would be permitted under EPTL 8-1.5 but solely for perpetual care of the two lots as clearly stated in the will. As such, it was an unreasonable amount and could be cut down by the Surrogate pursuant to EPTL 8-1.5. (Matter of Turk, supra.) It might be pointed out that the cemetery association did not attempt any showing as to how the proceeds of the gift could be used solely for the care of the two lots, nor what would be done with the accumulated income if the excess is accumulated.
In view of increased costs reflecting the inflationary trends in the economy we would fix and determine $1,000 to be the fair and reasonable cost of providing the perpetual care of the Getman lot and the L. F. Matteson lot in the Litchfield Cemetery.
The decree of Surrogate’s Court should be affirmed as so modified.
*265 Goldman and Henry, JJ., concur with Witmer, J.; Marsh, J. dissents in a separate opinion, in which Bastow, P. J., concurs.
Decree reversed on the law and facts and matter remitted to the Surrogate of Herkimer County to enter a decree in accordance with the opinion, with costs to all parties filing briefs, payable out of the estate.