Feature Story

The Probate Court and the Cemetery

In the July 1917 issue of Park and Cemetery, a monthly magazine devoted to all things public park and cemetery, we find the last of many full page advertisements for the thirty-first annual convention of the Association of American Cemetery Superintendents to be held at Barre, Vermont on August 28, 29, 30 and 31.

Park and Cemetery, in the same issue, reports the coming convention as follows:

The final program for the Barre convention of the Association of American Cemetery Superintendents printed below is conclusive evidence that this year's meeting at Barre, Vt., August 28, ‘29, 30 and 31, is going to be as important from a practical, educational point of view as it is unique as a scenic and historic vacation tour.

The program is one of the most complete and varied ever presented to the association and contains some features of unusual character and of the highest importance to cemetery officials. This meeting is going to be the occasion of a lifetime, and every cemetery man owes it to his profession to be present.

The local committee, of which Alexander Hanton, superintendent of the Barre City Cemeteries, its chairman, is making room reservations for a large attendance, but in order to facilitate their work it will be necessary that any one attending the convention advise them of the fact, and of the number of persons in the party. as the hotels are making their reservations through the committee only. Write Mr. Hanton at once, for accommodations.

In the 4 day program, we find many interesting speakers such as:

“Some Shade Tree Pests," by Harold L. Bailey, State of Vermont Department of Agriculture, in charge of insect suppression;

“The-Concrete Fence as Adapted to Cemeteries," by John F. Peterson, assistant superintendent Mount Auburn Cemetery;

...and this most interesting address by Frank J. Martin, Judge of Probate Court, entitled “The Relation of the Probate Court to the Cemetery”.

The Probate Court and the Cemetery
Address Before the Barre Convention of Cemetery Superintendents by Judge Frank J. Martin

Some days ago, our venerable grave digger, Hanton, requested me to address this convention, and the reason for his selecting me, was his very strong desire to have everything conform to the ancient command. “Let the dead past bury its dead," and the subject assigned is no less appropriate: “The Probate Courts and Cemetery Superintendents." Truly, a dead and dried subject for real live men to consider; “Dead Men’s Courts and Dead Men’s Guardians."

The Probate Courts of this country were born of the Ecclesiastical Courts of England and were early established in this country by the Legislative enactment of the several states. The common law of England is unknown in our Probate Courts, therefore, in order to have any clear idea of the jurisdiction, powers and relationship of those Courts, it is necessary to have a clear idea of the statute laws establishing and giving jurisdiction to Probate Courts in the various states, a discussion of which is plainly impossible in the short time allotted me for the consideration of this subject, for which reason, I am sure you will pardon me for making reference only to laws of our own State of Vermont, which has been made famous by its men, women and tombstones, and now, by the cemetery superintendents. The duties of Probate Courts in this State are many and various, but the primary object and duty of all such courts is the devolution of the property of deceased persons.

The pastor ministers to the soul and comforts the mourners, the friends, assisted by the undertaker, dispose of the personal remains, and the Probate Courts distribute the property of the deceased, among the living, in accordance with the law of the state in which the deceased resided at the time of his death, or in which his property was situate, and this is the last act in the great drama of life. All of the rest, residue and remainder consist of a memory which in most communities has been by law decreed to cemetery superintendents, in trust, to so care for and embellish the sacred and consecrated ground, that that memory shall forever remain green, in the minds and hearts of posterity.

We cherish the memory of our forefathers and most of us glory and boast of our puritan ancestry, but we are silent and in wonderment when we learn that from 1777, when the people of this most glorious, most beautiful and only independent state ever admitted into the Union, first organized civil government, to 1854, burial grounds, now called cemeteries, were allowed to be used as common pasturage for the beasts of the field, for in that year the Legislature imposed a fine of twenty five dollars on any person who should knowingly turn any horse. cattle, sheep or swine, into any burying ground laid out for the purpose of interring the dead, or who should knowingly suffer the same to run in any burying ground which is properly enclosed, Not until 1863 did the representatives of the people see fit to exempt burial lots for the dead, from taxation and attachment, and not until 1876, long after the Civil War, did they, by enactment, exempt from attachment, monuments erected to the memory of the dead, and forbid the laying of highways and railroads through cemeteries, without the consent of the association or general assembly; however, it appears that the puritan conscience of the wise ones received a flickering of light as early as 1863, when the Legislature passed an act providing that proceeds of the sale of burial lots were to be kept separate from general funds and devoted to keeping in order, improving and embellishing such burial grounds. This was the year that towns were authorized to elect commissioners to have charge of the burial grounds, and when they authorized towns or its trustees to take and hold grants, gifts and bequests for the improvement of burial grounds. Notwithstanding this privilege, one is led to believe that the grants and gifts were not many, and those who bequeathed for that object, failed to have their last will and testament probated, for the generous and public spirited Legislature of 1892 passed a law that provided that when a cemetery for any cause, became unsightly, the selectmen should, on written request of any three taxpayers of such town, and within ten days from the time of such request, cause the weeds or grass to be cut, headstones or monuments to be replaced, or other disfigurements removed, and may draw orders on the town treasurer for the expenses incurred; but the amount drawn from the treasury of a town for such purpose in any year, shall not exceed fifty dollars. And a penalty of ten dollars was imposed on selectmen refusing to perform this duty. (I ask you, gentlemen of experience, to consider taking a contract under the provisions of this law.)

This Act of 1882 opened the way, twelve years later, for the Legislature to pass an Act, authorizing towns, by vote, to receive and hold money, in trust, for the perpetual care of private burial lots in cemeteries or elsewhere. This law was strongly opposed in many towns, and some have not yet conformed to its provisions. While Probate Courts have been authorized since 1884, to decline to make distribution to the heirs of a deceased person until suitable gravestones have been erected at the grave of such deceased; and in the settlement of insolvent estates, since 1904, executors and administrators have been required to pay the expenses of erecting a marker or headstone at the grave of the deceased, not to exceed twenty-five dollars, if so ordered and allowed by the judge of probate, it was not until 1912, that probate courts were authorized to set aside an amount not to exceed $200.00 from the funds of an estate for the perpetual care of the burial lot of a deceased person, since which date, we have seen a marked improvement in the care of cemeteries in this state.

We are told that confession is good for the soul, therefore, we confess that there are some few drawbacks about Vermont, as was said by Vermont's Great Comedian, “The sleighing gets mighty poor up here along toward the latter part of August." And following Nature's example, it is no wonder that our legislature has been a little backward in providing for the care of our cemeteries: but Vermont is not alone in this respect, for l have seen as neglected cemeteries in states of warmer climate; and now, having set our hand to the work, the improvement is bound to increase as the years go by. Sentiment is being created for further aid by cities and towns and most of our cemeteries are in the hands of competent superintendents, among whom, our own "HANTON," is a leader, and further progress is assured. We honor you, gentlemen, who are honestly striving to embellish and make more beautiful, the last resting places of our loved ones. Your work is of the most honorable, and I assure you that the Probate Courts, so far as their jurisdiction permits, heartily join hands with you in your noble work, which tends to develop the high, the noble, the spiritual. We live on in this world of struggle and rest, of work and pleasure, of hate and love, of war and peace, and at last the moulded dust is crumbled and would be blown and scattered to the four winds and soon no more. Memory of our human form would not linger in the minds of the living, were it not for the protection and tender care of our cemetery superintendents. There is no picture we have seen, no landscape viewed, which has drawn us nearer to our spiritual ideal than that of a well kept cemetery. We may erect the most beautiful monument of the most durable granite, but if that monument is left to be covered with weeds and bushes, nourished and fertilized by the earthly remains of those we called our beloved, that monument becomes a hollow mockery and stands only as a monument to the fickleness of our devotion.

Whatever our creed, whatever our belief, we all have a longing for the beautiful, and the same desire that a beautiful spot be selected for our last, long rest, that called forth one of the last recorded expressions of the great Omar Khayyam:

My tomb shall be in a spot where the north wind may scatter roses over it.
And again:
I sometimes think, that never blows so red
The roses as where some buried Caesar bled;
That every Hyacinth the garden wears,
Dropt in her lap from some once lovely head.


Morton Billings