A. A cemetery authority is authorized and empowered to accept care funds and hold them in trust in perpetuity for the care of its cemetery; for the care of any lot, grave, crypt or niche in its cemetery; for the special care of any lot, grave, crypt or niche in its cemetery; or for the special care of any lot, grave, crypt or niche or of any family mausoleum or memorial, marker or monument in its cemetery. Creation of care funds shall not be invalid by reason of any indefiniteness or uncertainty as to the beneficiary designated in the instrument creating the funds. If care funds accepted by a cemetery authority include nonincome producing property, the authority may sell that property and invest the funds obtained in accordance with the provisions of this section.
B. In acquiring, investing, reinvesting, exchanging, retaining, selling and managing care funds, the cemetery authority or trustee of the funds shall exercise the judgment and care under the circumstances then prevailing that men of prudence, discretion and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital. Within the limitations of this standard, the cemetery authority or the trustee of the care funds is authorized to acquire and retain every kind of property and every kind of investment that men of prudence, discretion and intelligence acquire or retain for their own account. Within the limitations of this standard, the cemetery authority or trustee is authorized to retain property properly acquired, without limitation as to time and without regard as to the suitability for original purpose.
C. Care funds may be commingled with other trust funds received by the cemetery authority for the care of its cemetery or for the care or special care of any lot, grave, crypt, niche, marker or monument in its cemetery, whether received by gift, grant, devise, bequest, contribution, payment, contract or other conveyance made to the cemetery authority. The net income only from the investment of the care funds shall be allocated and used for the purposes specified in the transaction by which the principal was established in the proportion that each contribution bears to the entire sum invested.
D. With the prior written approval of the director, care funds may be commingled with trust funds of other cemetery authorities received by those authorities pursuant to this section. Net income only from the investment of those care funds shall be allocated to each cemetery authority and used for the purposes specified in the transaction by which the principal was established in the proportion that each authority's contribution bears to the entire sum invested.
History: 1953 Comp., § 67-29-4, enacted by Laws 1961, ch. 156, § 4; 2001, ch. 149, § 4.
ANNOTATIONSThe 2001 amendment, effective July 1, 2001, inserted the Subsection designations; in Subsection A, substituted the term "care funds" for the list of terms describing gifts to the cemetery authority throughout the subsection; in Subsection B, deleted "The care funds shall be held intact and, unless otherwise restricted by the terms of the gift, grant, devise, bequest, contribution, payment, contract or other payment, the cemetery authority" from the beginning of the subsection, substituted "care funds, the cemetery authority or trustee of the funds shall" for "property for any such trust shall", deleted "real, personal or mixed" following "every kind of property", deleted "including specifically, but without limiting the generality of the foregoing, bonds, debentures and other corporate obligations, stocks, preferred or common, and real estate mortgages" preceding "men of prudence" in the second sentence; and added Subsection D.
Section authorizes commingling of the care funds to be received under Section 58-17-6 NMSA 1978, with special care funds, gifts, bequests, contributions or other payments or property. State v. Collins, 1969-NMSC-104, 80 N.M. 499, 458 P.2d 225.
Funds to be perpetual. — Bonds or a trust fund in the sum of $10,000 required under the former Perpetual Care Cemetery Act had to be perpetual in nature. 1960 Op. Att'y Gen. No. 60-232 (rendered under former law).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 14 C.J.S. Cemeteries § 9.