#### Margaret Stewart’s Appeal.

1. The widow and administratrix of a decedent purchased a lot in a cemetery, which was paid for from the funds of the estate, and a deed made to her. The Court of Common Pleas decreed that she should execute a declaration of trust declaring that she held the lot subject to her own one-third, and that the children of decedent were owners in fee, entitled to all the rights of ownership and burial as if they were grantees. *Held,*to be correct.

2. The bill was at the suit of three of six children. *Held,*the complainants were entitled to have their rights declared although the other children were not parties.

February 25th, 1876.

Before A&new, C. J., Sharswood, Gordon, Paxson, and Woodward, JJ.

Appeal from the Court of Common Pleas of Philadelphia, No. 98, to January Term, 1875.

On the 13tli of October, 1874, Robert R. Stewart, in his own right and as guardian'of William Stewart and James *324Stewart, filed a bill against Margaret Stewart, administrator, etc., of George Stewart, deceased, The Mount Moriah Cemetery Association of Philadelphia, and Margaret Stewart.

The bill averred that the decedent died in 1872, intestate, leaving the above-named Margaret Stewart, his widow, and six children, viz.: George Stewart, Mary Stewart, and Samuel Stewart, together with the plaintiff and the two minors above named. Administration was granted to Margaret Stewart, the widow. On the 1st of May, 1872,shortly after decedent’s death, Thomas Pair conveyed to Margaret Stewart, the administratrix, a lot in Mount Moriah Cemetery. An auditor was appointed by the Orphans’ Court to distribute the funds arising from the sale of the decedent’s estate under proceedings in partition. Pair presented a claim for $125, the price of the lot; this was allowed by the auditor.

The bill further averred, that the lot having thus been purchased with funds of the estate of George Stewart, deceased, the said Margaret was entitled to one-third for life, and the remaining two-thirds belonged to the plaintiff and the other children of the decedent.

- The bill further averred: that the plaintiff had applied to said Margaret Stewart to execute a deed of'trust or to take such steps as would enable the children of the said George Stewart to exercise their rights of burial and other acts of ownership in said lot; but that she declined to execute any such, declaration or to take any steps as requested unless under certain restrictions, which she had no right to impose upon the said children as absolute owners of said lot. That by the act of incorporation of the Mount Moriah Cemetery Association, section 9, it is provided that every lot in said cemetery shall be held by the proprietor for the purpose of sepulture alone, transferable with the consent of the managers thereof, and shall not be liable to attachment and execution. That the deed for said lot, standing in the name of said Margaret Stewart, and being so registered upon the books of said cemetery association, your orator is apprehensive that a sale thereof may be made by said Margaret Stewart, and that the said children may be deprived of their rights as owners of said lot.

The prayer was:

That said Margaret Stewart, administratrix, be decreed to execute a declaration of trust as to the shares of said lot belonging to your orator, in his own right and as guardian aforesaid, and to do all other acts necessary to place upon the record of said corporation the fact of the plaintiff being part owner of said lot, and to enable him to exercise his rights in the premises; or that a partition of said lot be de*325creed, so that each of the joint owners of said lot may hold his share in severalty.

That the said Margaret Stewart be enjoined from making any sale or transfer of said lot, or any part thereof, and that the said Mount Moriah Cemetery Association be enjoined from consenting to any such sale or transfer.

And for further relief, etc.

Margaret Stewart, one of the defendants, demurred to the bill specially, as follows:

1. Because it does appear that Mary Stewart and Samuel Stewart, children of the deceased George Stewart, should have been made parties.

2. Because it is apparent on the face of the bill that the price was paid to the vendor voluntarily, *without fraud or mala*fides, and not at the instance of Margaret Stewart; and that she had a life estate only in that which can be held for sepulture alone.

3. Because the bill does not show any right whatever in 'the plaintiffs, or any right denied or withheld, wrong done or attempted, or the cemetery association’s consent to such transfer, which is a matter in their discretion to withhold.

4. Because it is uncertain, in stating that the deed for the lot stands in the name of Margaret Stewart, and in the thii’d paragraph that it was conveyed to her as administratrix.

5. Because it asks for a share of the lot, or a partition, when, confessedly, the holder has a right of *sepulture alone.*

The demurrer was overruled, Allison, J., saying: . . . . “ The first ground of demurrer, for want of proper parties, could not be sustained. If the remaining minor children did not choose, by their guardian, to intervene, the other plaintiffs could not for that reason be turned out of court. The averments as to the purchase of the lot with the funds of the estate were sufficiently clear. The cemetery association was a party, but made no objection to a decree such as was prayed for. Under these circumstances complainants were clearly entitled to have their rights protected by a declaration of trust, and so much of the prayer as prays for that must be granted.^’

The Court made the following decree:

“ That Margaret Stewart, administi'atrix of George Stewart, should execute a declaration of trust, declaring that she purchased the burial-lot described in the bill with the funds of the estate of the said George Stewart, and that she holds the said lot subject to her life estate in one-third thereof, as to the three undivided sixth parts thereof for Eobert E. Stewart, William A. Stewart, and James Stewart, and that they are the owners in fee of said three undivided sixths, *326subject as aforesaid, and that they are entitled to all rights of ownership and burial in said part of said lot as if they were grantees in the deed for the said lot.”

The administratrix appealed to the Supreme Court, and assigned for error, the overruling of the demurrer and the decree of the court.

*H. McIntyre,*for appellant.

Courts of equity have no control over a discretionary power, and the cemetery company, whose consent under their charter was necessary,.cannot be enjoined: Wharton *v.*School Directors, 6 Wright, 358. Equity will not enjoin an anticipated intrusion: Updegraff *v.*Grans, 11 Wright, 103.

*JR. 8. Hunter*and *W. B. Robins,*for appellees.

The decree that the rights of the plaintiff should be declared cannot affect the children who are not parties. The service of the bill on the company was notice, and they made no objection.;, this amounts to consent. The injunction on them is merely . auxiliary to the declaration of trust.

Judgment was entered in the Supreme Court March 13th, 1876.

Per Curiam :

The decree in this case goes no farther than to order a declaration of trust for the complainants. We see no reason to reverse it.

Decree affirmed at the costs of the appellant, and the appeal dismissed.