MISSISSIPPI LEGISLATURE

2001 Regular Session

To: Public Health and Welfare

By: Representative Ellis

AN ACT TO AMEND SECTION 41-43-37, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT MONIES CONTAINED IN A PERPETUAL CARE CEMETERY FUND SHALL BE EXPENDED SOLELY FOR THE PURPOSE OF THE CARE AND MAINTENANCE OF THE CEMETERY; TO PROVIDE A CAUSE OF ACTION IN CHANCERY COURT TO ENFORCE A VIOLATION OF THIS PROVISION; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 41-43-37, Mississippi Code of 1972, is amended as follows:

41-43-37. (1) The owner of every cemetery, subject to the provisions of Sections 41-43-31 through 41-43-53, which is organized, commences, or continues to do business in the State of Mississippi after May 6, 1958, and desires to operate as a perpetual care cemetery, shall provide for the creation and establishment of an irrevocable perpetual care trust fund, the principal of which shall permanently remain intact except as hereinafter provided and only the income thereof shall be devoted to the perpetual care of such cemetery, and which principal shall be known as the perpetual care fund of such cemetery. This fund shall be created and established as follows:

(a) In respect to a cemetery for earth burials, by the application and payment thereto of an amount equivalent to fifteen percent (15%) of the sale price, or Forty Cents (40¢) per square foot of ground interment rights sold, whichever is greater;

(b) In respect to an above-ground community or public mausoleum, by the application and payment thereto of an amount equivalent to five percent (5%) of the sale price, or Fifty Dollars ($50.00) per crypt sold, whichever is greater; and

(c) In respect to a community columbarium, by the application and payment thereto of an amount equivalent to five percent (5%) of the sale price, or Ten Dollars ($10.00) per niche sold, whichever is greater.

(2) From the sale price the owner shall pay to the perpetual care fund an amount in proportion to the requirements in subsection (1) of this section, which payment shall be in cash and shall be deposited with the custodian or trustee of the fund not later than thirty (30) days after the close of the month in which the total payment on such sale is received.

(3) In addition to the provisions of subsections (1) and (2) of this section, any cemetery organized after May 6, 1958, or any mausoleum or columbarium which is built at any location other than upon property owned by an existing cemetery after such date, whether it be by incorporation, association, individually or by any other means, or having its first burial after such date, shall, before disposing of any burial lot or right or making any sale thereof and/or making its first burial, cause to be deposited the sum of Five Thousand Dollars ($5,000.00) in cash into an irrevocable perpetual care trust fund as provided in subsection (1) of this section for the maintenance of such cemetery.

(4) Whenever the cemetery shall have deposited in the perpetual care fund, as required by this section, a sum amounting to Ten Thousand Dollars ($10,000.00), it shall submit proof of such fact to its trustee, and it shall be the duty of the trustee to thereupon pay over to the cemetery the amount of Five Thousand Dollars ($5,000.00) so originally deposited by it in the perpetual care fund.

(5) The perpetual care fund shall be permanently set aside in trust to be administered under the jurisdiction of the chancery court of the chancery court district wherein the cemetery is located. The chancery courts so having jurisdiction shall have full jurisdiction over the reports and accounting of trustees, amount of surety bond required, and investment of funds. The courts may waive the surety bond and control of investments in the case of trusts placed with an established bank or corporate trustee. Only the income from such fund shall be used for the care and maintenance of the cemetery for which it was established.

(6) Monies in the perpetual care fund may be expended solely for the purpose of the care and maintenance of the cemetery. The chancery court of the chancery court district in which the cemetery is located shall have jurisdiction to determine if the monies contained in the perpetual care fund are properly expended. Any person owning a lot, grave space, crypt or niche in a cemetery that is subject to the provisions of Sections 41-43-31 through 41-43-53 may bring an action in chancery court to enforce the provisions of this subsection.

(7) Each geographic location of a cemetery shall constitute a separate and distinct cemetery for the purpose of interpretation and application of this section.

SECTION 2. This act shall take effect and be in force from and after July 1, 2001.