AGO 1955 No. 31 - Feb 21 1955
CEMETERIES ‑- THREE‑PARTY AGREEMENTS ‑- NECESSITY FOR CARE ENDOWMENT FUND.
1. A certificate of authority is required for operation of a mausoleum within a cemetery.
2. An endowment care fund is optional for operators of a mausoleum.
3. If an endowment care fund is established for a mausoleum, there must be deposited in addition to $30 for each crypt, a sum of $25,000 in the fund.
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February 21, 1955
Honorable C. S. Harley
The Cemetery Board
11111 Aurora Avenue
Seattle 33, Washington Cite as: AGO 55-57 No. 31
By letter as previously acknowledged you have requested the opinion of this office upon certain questions involving the interpretation of a three‑party agreement. In substance, this agreement provides for the sale of twenty-one grave lots by the first party, the Independent Order of Oddfellows, to the second parties, J. L. Hale and wife, for a named consideration. The agreement further provides that J. C. Milne, the third party, shall, for an agreed consideration, construct, on the twenty-one lots purchased by the second parties, a mausoleum containing eighty crypts. The contract further provides that the third party shall construct for the first party, out of similar material and of a similar style of architecture, a mausoleum which shall contain twenty-four crypts and fifty-eight niches, the whole construction to be such as to give the appearance of one building.
It is apparent from the terms of the contract that the portion of the building [[Orig. Op. Page 2]] containing the eighty crypts contracted for by the second parties shall be owned solely by them, and it is apparently their intention to operate the mausoleum so constructed as an independent enterprise of the second parties. In this connection, you have propounded four questions which are as follows:
1.Are J. L. Hale and wife required to obtain a certificate of authority from the cemetery board?
2. Are they required to set up an endowment care fund in accordance with the cemetery code, Title 68?
3. If they are required to set up an endowment care fund, will the amount be $25,000 as required by RCW 68.40.010?
4. If you hold that Hale and his wife are not required to set up an endowment care fund, who is required to make payments into the endowment care fund covering the mausoleum crypts constructed on the property conveyed to Hale et ux.?
Answering the questions in the order submitted, our answer to question No. 1 is yes. Assuming that the Hales intend to set up as a cemetery authority for the purpose of selling the crypts in their mausoleum, under the provisions of RCW 68.05.240 (1953 Supp.), they would be required to have a certificate of authority before permitting an interment in the mausoleum. This section reads as follows:
"It shall be a misdemeanor for any cemetery authority to make any interment without a valid, subsisting, and unsuspended certificate of authority. * * *"
In answer to question No. 2 it is our opinion that an endowment care fund is not required. RCW 68.40.010 (1953 Supp.) provides the manner in which the endowment care fund is set up where an endowment care cemetery is established, but RCW 68.40.020 (1953 Supp.) provides in substance that an endowment care cemetery may contain a small section which may be sold without endowment care if the section is separately set off from the remainder of [[Orig. Op. Page 3]] the cemetery and if signs are kept prominently placed around the section designating it as a non-endowment [[nonendowment]]care section. The section further prescribes the size, shape and construction of the signs that must be kept posted in and around the non-endowment [[nonendowment]]care section. As we read RCW 68.40.010 and 68.40 020, it is our opinion that the matter of setting up an endowment care fund would be optional with the Hales.
Answering question No. 3, it is our opinion that if the Hales set up an endowment care fund for the mausoleum they would be required to comply with the provisions of RCW 68.40.010 (1953 Supp.), which provides in substance that an endowment care cemetery is one that deposits in its endowment care fund not less than thirty dollars for each crypt sold, and shall also have deposited in its endowment care fund the additional sum of $25,000 before disposing of any plot or making any sale thereof.
The answer to your question No. 4 has been substantially supplied by our answers to questions Nos. 2 and 3; that is, it is our opinion that the mausoleum erected by the Hales can be operated as a non-endowment [[nonendowment]]care fund mausoleum if they so elect, in which case no one would be required to contribute to a care fund.
Very truly yours,
ROY C. FOX
Assistant Attorney General