WILTON – The Trustees of the Cemetery have a trust fund with more than $200,000 that, under cur­rent interpretations of the law, they cannot use for cemetery maintenance or anything else except for maintenance of gravesites – basically, mowing and trimming.

On Oct. 26, the trustees, along with the Trustees of the Trust Funds, met with the Board of Select­men to try to find a solu­tion to the problem. The questions will be asked of town counsel, and it will probably require a vote at Town Meeting to set up a new trust fund.

The problem was brought to the trust­ees’ attention by Terry Knowles, of the attorney general’s office of trusts. She was apparently alert­ed by auditors who dis­covered a discrepancy.

Knowles has indicated that her office recom­mends the trustees "go and sin no more" – that is, from now on handle the fund properly. She sug­gested a vote of the town might be necessary to address the older funds. As things stand now, that money cannot be spent But that leaves the trustees with a fund they can’t touch that will con­tinue to grow. Longstand­ing state law says the principle in such funds cannot be touched, but some interpretations of the "perpetual care deeds" leaves even the interest unspendable.

"Perpetual care" is a sum of money paid to the town at the time the cemetery lot was pur­chased and is intended to provide for that burial lot forever. That prac­tice was discontinued in 1981, with all money go­ing into a separate cem­etery fund. The problem lies with the lots sold prior to 1981.

Trustee of the Trust Funds member Betsy Castro said the problem dates to graves from the 1700s and 1800s for which there is no record that they have "perpetual care" accounts. One read­ing of the statute says to "assume that those early lots had such provisions," while another interpreta­tion says no.

Castro said one prob­lem is a fire that de­stroyed all of the town records in the late 1800s.

"Our conclusion was to assume all lots included the care," she said.

They have no records earlier than 1906.

Under the statutes, she said, "The town is respon­sible for non-perpetual-care lots."

Under the old sys­tem, each lot with a per­petual care fund was a separate fund adminis­tered by the Trustees of Trust Funds. In recent years, those individual accounts have been combined, but with the records kept separately for auditing how much interest each lot has earned.

Currently, the inter­est earned on the com­bined fund exceeds the amount needed for al­lowed maintenance, and it is that money that is sought for general cem­etery work and upgrad­ing.

"Money not intended for perpetual use should not have been put into the fund," said Select­man Kermit Williams, who has been studying the issue. "We have been putting money in, but it isn’t really a trust."

Dan Donovan, a trustee and former selectman, agreed.

"It shouldn’t have been put in," he said, since it can’t be taken out.

The fund in question holds $230,000 – all of the lots sold by the town dur­ing the last 35 years, plus interest.

Donovan suggested changing the funds "so that everything that shouldn’t be there could be withdrawn" and a new cemetery fund set up.

Williams agreed: "Those lots that don’t have trusts, we should be able to take out."

Donovan said he would like a legal opinion about whether the money de­posited by mistake can be put into another cem­etery fund.

The trustees said they haven’t found any record of the town voting to cre­ate such a fund.

If voters approve the creation of the new fund, it would be administered by the Trustees of Trust Funds.