Cemetery in good hands with citizens, Justices rule

By Steve Korris | Jun 5, 2008

CHARLESTON – Marion Circuit Judge Fred Fox correctly snatched ownership of Fairmont's Woodlawn Cemetery from a corporation and entrusted it to local citizens, the West Virginia Supreme Court of Appeals has decided.

The Justices on June 2 agreed that even if the Woodlawn Cemetery Company was in good standing as a corporation, it was extinct under state cemetery law.

Based on the record, they wrote, Fox "could fairly find that the appellants had failed to properly execute their duties in administering the cemetery's affairs."

The cemetery, 133 years old, holds a place on the National Register of Historic Places. It has about 14,000 graves.

Woodlawn Cemetery Company formed in 1885 and incorporated in 1935.

In 1973, the Legislature required cemeteries to establish a permanent endowment trust fund and support it with a portion of proceeds from sales of burial plots.

In 1974, Woodlawn Cemetery deposited $10,000 into a perpetual care trust fund. The fund eventually grew to about $35,000.

In 1996, Jack Lee Decker became corporation president and family members Arlene Edgell, Susan Brown and Chris Decker became vice president, secretary and treasurer.

Decker stopped making deposits into the perpetual trust, though he maintained the cemetery acceptably.

In 2005, he asked his bank to terminate the fund and pay the balance to the cemetery.

The bank turned him down, finding no legal basis for ending a perpetual trust.

In 2006, John Hardesty Jr., William Wagner, Frank Clark Jr., Janice Watkins Cosco and Douglas Hutchinson petitioned in circuit court for appointment as trustees.

State law allows any five individuals to petition for appointment as cemetery trustees if the original owner is extinct and all five have relatives buried there.

The five claimed that no board of trustees existed to oversee the cemetery.

Fox granted their petition, finding that the cemetery had not funded the endowment.

He wrote that the new group "would better serve the families who have loved ones buried in the cemetery, as well as the whole community."

Decker appealed, and he lost.

"It is fundamental rule that corporations established to operate cemeteries are uniquely different from other types of corporations," the Justices wrote.

"Cemetery corporations are, essentially, trustees charged with operating and maintaining land dedicated as a cemetery," they wrote.

Fox correctly found that the corporation abandoned its responsibilities, they wrote.

Gregory Schillace and Thelma Poe of Clarksburg represented Decker. Neal Hamilton of Fairmont represented the new trustees.

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