CONGREGATION USING CEMETERY MONEY

QUESTION:

In Wheeling, West Virginia, there are three Jewish cemeteries which are privately owned and managed. The owners now wish to turn these cemeteries over to the congregation. However, they make the condition that none of the income from the cemetery be used by the congregation for any other than cemetery purposes. May the congregation accept this restriction? If they accept it, may they, when circumstances change later, use the money for other congregational purposes? (Asked by B.L. through M.S.)

ANSWER:

THE FACT THAT the cemetery owners have publicly declared their intention of giving their cemetery property over to the synagogue has, in itself, a certain importance in Jewish law. It is deemed to be more or less in the nature of a vow; and the question then becomes this: May one who has announced a gift to a congregation change the purpose or the recipient or the conditions of the gift? This question is given its final decision in the Shulchan Aruch (Yore Deah 259:1). It is as follows: As long as the gift has not been formally transferred to the recipients (in this case, the congregation), the owners may change its purposes or the conditions of the gift, or even the recipient. In this case, the announced intention of the owners to turn the cemeteries over to the congregation does not obligate them to the letter of the condition until the property is actually formally received by the congregation (Yore Deah 259:1). Therefore, if the discussions between the donors and the congregation result in some sort of compromise, the conditions of the gift may well be changed. But if the congregation has already accepted the gift, it is difficult to change the agreed-upon conditions.

While difficult, it is not impossible even then (when the gift has already been formally accepted) to change the agreed-upon purposes under certain limited conditions. If the gift were, for example, a menorah given to the synagogue, or an Ark given to the synagogue, or a window, and the name of the donor is on the object or known to be associated with the object, then it is difficult to change the purpose for which it was given. Under these circumstances, the congregation may not sell the gift (e.g., the menorah) and use the money for some other congrega-tional appurtenance. Therefore, if this gift of the cemetery remains associated with the names of the donors, it becomes more difficult to use some of the money, the income, for any other purpose. But, for example, if many years from now the names of the donors were forgotten, there would be almost no difficulty in the congregation using some of the money of the cemetery income for any other congregational purpose.

But we must assume that this possibility is highly theoretical. It is known, and will be known for quite some time, who were the donors of this cemetery gift. Nevertheless, even when the names of the donors are known and associated with the gift, it is still possible for the congregation to change the original stipulation that none of the money be used for other than cemetery purposes. But the question is, what changes, according to the spirit of Jewish law, may a congregation make in the original stipulations of the gift?

This question goes back to the time of the Mishnah. In Mishnah Megillah 3: 1, we read that the officers may sell the city square (which was deemed a religious place because fast-day services were held there) to buy a synagogue. They may sell the synagogue to buy an Ark. They may sell an Ark to buy a Torah. The principle is derived here that in all such sales and purchases, the movement must be upward from the less holy to the more holy. This, then, is discussed in the Talmud, which tells us what is the most holy purpose of all for which any synagogue appurtenance may be sold or synagogue money may be used. In Megillah 27a the conclusion is that even a sacred Sefer Torah may be sold for the purpose of providing money for education. This is established as law in the Shulchan Aruch 259:2, which says specifically: “Money which has been donated for the needs of the synagogue, or for the needs of the cemetery, may be converted for the use of the school or the study of the Torah.” In other words, no matter what are the conditions of the gift, they may always be changed by the congrega-tion, but only for the purpose of Torah study. In our case that means helping the religious school or adult education. Isserles makes a partial modification of this rule, namely, that if education is already generally provided for, then of course such a change in the purpose of the original gift should not be made. But in general this rule stands.

This question has been discussed from Talmudic times on. Asher ben Yechiel (who left Germany at the time of the Crusades and settled in Spain) comes to this conclusion in his responsa (section 13, # 14), and so do Joseph Colon (15th century, Italy; responsum #124) and, in modern times, Moses Feinstein (Igros Moshe, new series, Orach Chayim 26).

Perhaps the solution of the problem should be as follows: that the congregation and the donors agree that the cemetery income shall not be used for any congregational purpose except when needed for religious education, provided that there will always be sufficient funds left for cemetery uses.

Incidentally, as a matter of practical experience, many congregations use money from their cemetery for congre-gational purposes. Of course, they are not restricted since the cemetery money was not a gift to the congregation, as it is in this case.

Addendum

Subsequently to writing the above, I was informed that the congregation and the owners of the cemeteries have not yet come to an agreement. The owners insist that the money in the cemetery funds and income be used only for cemetery purposes, and the congregation feels that there are too many restrictions placed upon the proposed gift.

Clearly it is of considerable importance that both sides make an effort to come to an agreement. On the part of the present owners of the cemeteries, they must realize that Jewish traditional law permits the transfer of some of such funds for educational purposes; that is to say, for Jewish religious educational purposes (Torah). But if, for exam-ple, the congregation conducts a class, as some congrega-tions are doing, to teach English to newly arrived immi-grants, it would not be permissible to use cemetery money for such a purpose. But for the religious school, for bringing lecturers for adult education, etc., it would be permissible. All this is stated and reiterated in the law. Then one might well say that this much of a concession the owners are not only permitted, but are required to make according to Jewish tradition.

As for the congregation and its board, they may well feel that too many restrictions are being placed on the gift. But they must also bear in mind that maintaining a Jewish cemetery is not the responsibility of private businessmen but of a congregation. All over the Jewish world, Jewish communities have been uneasy when they did not own the cemetery outright because princes and lords of the manor could desecrate the cemeteries by building roads through them. It is for that reason that the great Rabbi of Kovno two generations ago, Isaac Elchanan Spektor (in his responsa Eyn Yitzchok, Yore Deah 24), would not permit a burial in a cemetery which was not owned outright by the Jewish community. So the congregation surely is aware that to own a cemetery is a responsibility of the congregation.

Therefore it is clear that in spite of all difficulties, the spirit of the tradition remains, in this case, that both parties should make the necessary concessions so that a Jewish congregation can fulfill its responsibility and own a cemetery outright.