1858_05_27 Letter from Jacob Bigelow to Charles P. Curtis, 1831.014.003-009

There never was any "gardener" at Mount Auburn. One was contemplated by the Hort. Society & provided for in their act of incorporation, but no land was ever set off for that purpose. Therefore the words "cemetery & garden" mean only the present cemetery.

There are two items of property provided for in the act under which the transfer was made.

1. The "garden & cemetery now held by the Mass Horticultural Society." Section 2^d

2. "Any other lands adjacent thereto not exceeding fifty acres" &c -- Section 2^d

The first item is afterwards continually referred to as the "said garden & cemetery", or "said cemetery". The second item is continually ignored, and never referred to afterwards in the act.

Now if it had been the intention of the contracting parties to have guarded the second item for the benefit of the Horticultural Society, they would have said not simply the "said cemetery", but "said cemetery & any other lands adjacent thereto," or "added thereto."

The following [equation?] will trace the thing from the end to the beginning

"Cemetery lots", section 10^th, mean "Lots in the said cemetery" expressed in line before

"Said cemetery" means "The cemetery now held by the Mass. Horticultural Society."

Which means The cemetery which they sold to the present corporation under the act of the Legislature, and nothing more.

As to "trusts, powers" &c the Horticultural Society had none to convey, having exhausted all they had, in purchasing the land for $10,000.

As to the "enlargement" of the cemetery this is well explained by Mr Loring . It is not named in any connexion with the Horticultural Society, but like "embellishment" &c. simply relates to the mode of using the funds.

I am satisfied without further legal advice, but consent to consult Mr Fletcher if the committee desire it. In that case the two previous arguments should be submitted to him as judge

Jacob Bigelow

May 27 1858

Jacob Bigelow to Chas. P. Curtis May 27, 1858.

C. P. Curtis Esq Chairman [&c?]