City Files Petition To Turn Confederate Cemetery Over To Sons Of The Confederacy

Thursday, February 22, 2018
Handsome gate at the entrance to the Confederate Cemetery
Handsome gate at the entrance to the Confederate Cemetery
- photo by Will Stokes

The city of Chattanooga has filed a petition in Chancery Court asking that management of the Confederate Cemetery be turned over to the Sons of the Confederacy.

The Sons of the Confederacy, a group that has long taken care of the cemetery, joined in the petition.

The cemetery is located by the UTC campus. It is beside the Citizens Cemetery and the Jewish Cemetery on the old Gardenhire farm.

The issue arose last August after the death of a protestor involving a Confederate statue in Charlottesville, Va. Mayor Andy Berke at the time said he was asking City Attorney Wade Hinton to file the necessary paperwork "to confirm the city is no longer listed as a trustee of a Confederate Cemetery on East Third Street."

Mayor Berke then said, “Our action today makes it clear that the city of Chattanooga condemns white supremacy in every way, shape and form. While we honor our dead, we do not honor the principle for which they fought. Our city should be invested in our future, not a discredited past. Confederates fought against America to preserve slavery. That is the truth, and we should no longer subsidize any myths to the contrary.”

However, the petition was not filed until this month. It is being handled for the city by attorneys Alan Cates and Ariel Anthony.

The petition says in 1942 through an order of Circuit Court the city was made a trustee of the cemetery along with several citizens. It was to be in effect for five years. The petition says the city's term as trustee expired in 1947.

It says the Sons of the Confederacy group has been tending to the cemetery for many years and wants to continue to do so.

The case is before Chancellor Jeff Atherton.

Here is the full petition:

JOINT PETITION TO APPOINT VETERANS CEMETERY TRUST AS SUCCESSOR TRUSTEE

The City of Chattanooga ( the " City") and the Veterans Cemetery Trust, through counsel, respectfully submit this Joint Petition to the Court to Appoint Veterans Cemetery Trust as Successor Trustee ( the " Petition") of the real property at 850 East 3rd Street, Chattanooga, Tennessee. In support of their Petition, the City and the Veterans Cemetery "

Trust would show the Court as follows:

1. On September 3, 1867, George W. Gardenhire conveyed by warranty deed to John V. Brown, J. L. M. French, and A. D. Taylor, and their successors, as trustees, certain land to be used as a cemetery for the dead of the Confederate arms- (the " Cemetery"). A true and accurate copy of the Warranty Deed is attached hereto as Exhibit A.

2. On April 11, 1901, an additional parcel of property bordering the Cemetery was conc-ec•ed, by warranty deed, from F.M. Gardenhire to Anna R. Van Dyke and Leona Gardenhire, as trustees, for the purpose of expanding the Cemetery and of allowing an entry to the Cemetery.

3. On May 25, 1942, the City, along with Maggie Lynn Peeples, C. E. Buek, George W. Gardenhire, and Dr. Battle McLester (collectively, the " Trustees"), were determined by decree of the First Division of the Circuit Court of Hamilton County, Tennessee ( the " Decree") to be trustees for the Cemetery. A true and accurate copy of the Decree is attached hereto as Exhibit B. 

4. The Decree provides that the Trustees were to serve for a period of five ( 5) years from the date of the decree, and until the successor Trustees are elected and qualified. See Exhibit B.

5. The Decree provides that if any of the Trustees were to resign, die, or remove their residence from Chattanooga, Tennessee, the remaining Trustees were empowered to elect a successor "Trustee to serve for the remainder of the term. See Exhibit B.

6. No successor trustees were ever appointed after the expiration of the five ( 5) year term described in the Decree.

7. As of the filing of this Petition, the trust owns the Cemetery.

8. The City' s term as trustee expired May 25, 1947, and no further appointments of successor co -trustees have occurred thereafter.

9. The Sons of Confederate Veterans, a Local, State and National not -for -profit organization, currently maintain the Cemetery, and have maintained the Cemetery for many years.

10. The Sons of Confederate Veterans have sought the City's authorization to maintain the Cemetery for years.

11. The City believes it is in the best interest of the Cemetery to remove any bureaucratic barriers for the maintenance of the Cemetery.

12. The general assembly of the State of Tennessee recognizes that the proper maintenance of a cemetery or burial grounds, whether private or public, is in the interest of the public health and safety serving a valid public purpose. Penn. Code Ann. j 46- 7- 101( a).

13. A trust created for the perpetual care or improvement of a cemetery or graves lessens the burden of government and, therefore, was found by the general assembly to be a charitable trust. ' 1' o that end, the general assembly declared its support for the establishment and formation of trust corporations to serve as trustee of charitable trusts for the perpetual care of private cemeteries. Tcnn. Code Ann. § 46- 7- 101( b).

14. Petitioner Veterans Cemetery Trust has obtained the required approvals from the Secretary of State to be appointed trustee of a cemetery, pursuant to Title 46 of the Tennessee Code Annotated. Veterans Cemetery Trust is a duly organized Tennessee corporation, registered with the Tennessee Secretary of State by the Sons of Confederate Veterans.

15. The Veterans Cemetery Trust was created for the purpose of and desires to be appointed successor trustee of the Cemetery, with the stated purpose of administering the Cemetery and for the perpetual care of the Cemetery, in accordance with Tennessee law. T.C.A. § 46-7- 102.

WHEREFORE, the City and Veterans Cemetery Trust respectfully request that this Court:

A. Declare that the City no longer serves as trustee;

B. Appoint Veterans Cemetery Trust as successor trustee for preservation of the Cemetery, to serve for so long as it continues to operate in such capacity;

C. Provide such other relief as the Court may deem necessary. 



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