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SJC-13326

CHURCH OF THE HOLY SPIRIT OF WAYLAND & others1 vs. MARILYN J. 

HEINRICH & others2 (and a companion case3).

Middlesex. December 5, 2022. - March 14, 2023.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, 

& Georges, JJ.

Church. Cemetery. Contract, Church, Construction of contract. 

Common Law.

Civil action commenced in the Middlesex Division of the 

Probate and Family Court Department on August 29, 2017.

The case was heard by Camille F. Sarrouf, Jr., J., sitting 

under statutory authority, on motions for summary judgment.

1 The Episcopal Diocese of Massachusetts and Saint 

Philopateer Mercurius & Saint Mina Coptic Orthodox Church, Inc.

2 John Doe Heinrich No. 1, John Doe Heinrich No. 2, Mary 

Wilson, John Doe Wilson, John Doe Hodgins, Christopher Woodcock, 

John Doe Woodcock No. 1, John Doe Woodcock No. 2, Carolyn J. 

Kiradjieff, John Doe Jobes No. 1, John Doe Jobes No. 2, Mary Ann 

Montague, John Doe Turner No. 1, John Doe Turner No. 2, Judy 

Mosedale, John Doe Mosedale No. 1, John Doe Mosedale No. 2, 

Stephanie P. Edwards, John Doe Edwards No. 1, and John Doe 

Edwards No. 2.

3 Mary J. Wilson & others vs. Church of the Holy Spirit of 

Wayland & others.
2

Civil action commenced in the Superior Court Department on 

June 28, 2019.

A motion to dismiss was heard by Camille F. Sarrouf, Jr., 

J.

After review by the Appeals Court, the Supreme Judicial 

Court granted leave to obtain further appellate review.

William F. Gramer (Nicholas K. Holmes also present) for 

Marilyn J. Heinrich & others.

Jennifer Grace Miller for Church of the Holy Spirit of 

Wayland & another.

Audrey Y. Botros for Saint Philopateer Mercurius & Saint 

Mina Coptic Orthodox Church, Inc.

LOWY, J. This case concerns the scope of rights conveyed 

by a set of burial certificates, as sold by a church to its 

parishioners. After dwindling membership compelled the Church 

of the Holy Spirit of Wayland (Church of the Holy Spirit, or 

church) to close and sell its property, do the certificates

permit the church to disinter and relocate the cremated remains 

buried on that property despite the objections of the decedents'

families?

Although we acknowledge the sensitive -- even sacred --

nature of the subject matter of this dispute, we conclude that 

the burial certificates' unambiguous language permits the 

disinterment and that no common-law right held by the families 

prevents it. We therefore affirm.

Background. The material facts are undisputed. The Church 

of the Holy Spirit was established in 1961 as a parish of the 
3

Episcopal Diocese of Massachusetts. In the late 1960s, the 

church set aside a portion of its land for use as a "Memorial 

Garden," also referred to as a "Churchyard." Parishioners could 

arrange for cremated remains (cremains) to be interred in the 

Churchyard by purchasing a certificate from the church. Between 

1969 and 2008, a number of such certificates were sold. The 

one-page certificates each granted the purchaser a right to one 

or more interments that were "subject to the regulations of the 

Churchyard now or hereafter in force."

The referenced regulations were wide ranging. They 

covered, among other things, the Churchyard's operations and 

layout, groundskeeping restrictions, permitted styles of 

memorial plaques, and procedures for interment. The regulations 

also contemplated disinterment of cremains, specifying that 

disinterment was forbidden "without the consent of [the Church 

of the Holy Spirit]." And, consistent with the certificates, 

the regulations further provided that they were subject to "be 

amended or revised from time to time" by the church.

Beginning in 2000, the church's membership began to wane. 

As the years passed, its financial difficulties mounted, and in 

March of 2015, the congregation concluded that it was "unable to 

function as a viable church" and voted to close. The church

subsequently entered into negotiations with St. Mark Coptic 

Orthodox Church of Boston (St. Mark) for sale of its property, 
4

including the Churchyard. Although St. Mark agreed to meet the

asking price, it objected to taking ownership of the Churchyard

as it was, largely because the Coptic Church's religious beliefs 

do not permit cremation. The church ultimately agreed to 

disinter and relocate the cremains as a condition of the sale.4 

St. Mark took the deed to the Wayland property in 2016, and 

shortly thereafter it resold the property and assigned its 

rights under the purchase and sale agreement to Saint

Philopateer Mercurius & Saint Mina Coptic Orthodox Church, Inc. 

(St. Philopateer). For the same religious reasons, St. 

Philopateer shared St. Mark's objections to the cremains 

remaining on the property.

At the time of the sale of the land to St. Mark, the 

cremains of at least forty-nine individuals were interred in the 

Churchyard. The church contacted the families of the deceased

and requested their consent for relocation and reinterment of 

the cremains, to be undertaken at the church's expense. 

Although most consented, family members representing the 

cremains of twelve individuals (hereinafter, families) did not.5

4 The purchase and sale agreement memorializing that term

further specified that the church's obligation to remove the 

cremains would survive the sale's closing.

5 The next of kin for certain interred individuals could not 

be located.
5

At an impasse, the church subsequently amended the 

Churchyard regulations. The newly enacted provisions 

specifically authorized the church to shutter the Churchyard and 

relocate the cremains:

"If the Church of the Holy Spirit ceases operations or 

ceases operations at the property where the Churchyard 

Memorial Garden is located, then the Vestry or Executive 

Committee, as the case may be, may cause the Churchyard 

Memorial Garden to be discontinued or moved to an alternate 

location, and/or cause all cremated remains located in the 

Churchyard Memorial Garden to be disinterred and relocated 

to one or more other locations within the Diocese of 

Massachusetts or returned to the families of the cremains."

The church and St. Philopateer then filed a complaint in 

the Probate and Family Court seeking a declaration that the 

regulations, as amended, permitted removal of the cremains. 

Certain members of the families who had objected to the proposed 

disinterment asserted counterclaims for breach of contract, 

tortious interference with contractual relations, and violations 

of G. L. c. 93A. As those counterclaims lay beyond the court's 

jurisdiction, they were dismissed and refiled in the Superior 

Court, with an additional claim for violation of the covenant of 

good faith and fair dealing. The presiding Superior Court judge 

was then specially assigned to sit as a Probate and Family Court

judge so that the two related actions could be consolidated.

Upon cross motions for summary judgment in the Probate and 

Family Court case, the judge entered judgment dismissing the 

families' claims and declaring that the church had the right to 
6

disinter and relocate the cremains in the Churchyard.6 The judge 

reasoned that the regulations entitled the church to close the 

Churchyard, thereby extinguishing any common-law rights the 

families may have in the burial plots, which could exist only 

"so long as the place continues as a burial ground." Trefry v. 

Younger, 226 Mass. 5, 9 (1917). The families filed a timely 

appeal, and in a published opinion, the Appeals Court reversed. 

See Church of the Holy Spirit of Wayland v. Heinrich, 101 Mass. 

App. Ct. 32, 53 (2022). We granted the church's petition for 

further appellate review.

Discussion. "Summary judgment is appropriate where there 

is no material issue of fact in dispute and the moving party is 

entitled to judgment as a matter of law. Our review of a 

decision on a motion for summary judgment is de novo" (quotation 

and citation omitted). Le Fort Enters., Inc. v. Lantern 18, 

LLC, 491 Mass. 144, 148–149 (2023).

1. The certificates. The rights and responsibilities of 

the parties are governed by the language of the certificates, 

which are indisputably contracts. See McAndrew v. Quirk, 329 

Mass. 423, 425 (1952) (burial rights are "subject to whatever 

conditions were contained in the instrument [granting the] 

interest in the lot"); Green v. Danahy, 223 Mass. 1, 4 (1916) 

6 The judge also granted a parallel motion to dismiss the 

claims in the Superior Court case.
7

(applying contract principles to dispute over obligations under 

burial certificate). "When the words of a contract are clear, 

they must be construed in their usual and ordinary sense

. . . ." General Convention of the New Jerusalem in the U.S. of 

Am., Inc. v. MacKenzie, 449 Mass. 832, 835 (2007). Such 

language, "plainly and intelligibly stated[,] . . . is the best 

possible evidence of the intent and meaning of those who are 

bound by the contract, and of those who are to receive the 

benefit of it." Stackpole v. Arnold, 11 Mass. 27, 31 (1814).

The certificates are exceedingly straightforward. They 

grant "right[s] of . . . interments" and state that any such

right conveyed is subject to regulation by the church.7 

Importantly, they further provide that the church may amend the

regulations after the contract is executed, a right that is 

reiterated in the regulations themselves. Such terms are not 

unique in burial contracts. See McAndrew, 329 Mass. at 425;

7 The certificates and regulations lack any language 

associated with property rights or covenants that run with the 

land. Compare Trefry, 226 Mass. at 8 (burial rights conveyed 

"under seal and in the form of a grant" and "run to the grantee 

'and his heirs forever'"). Cf. Feeley v. Andrews, 191 Mass. 

313, 315-316 (1906) (burial easement "can be created only by 

grant under seal"). Although the regulations contain a

reference to "perpetual care," that term is explicitly defined 

as "simple maintenance of the Churchyard, keeping individual 

lots and the Memorial Grounds free of fallen branches and trees, 

trimming of trees when necessary, and maintaining a path through 

the Churchyard." This language evinces no intent to convey a 

permanent property right.
8

Green, 223 Mass. at 4 (certificate for burial in Catholic 

cemetery stated right was "subject always to the following 

regulations, or such others as may be from time to time 

prescribed").

Neither the certificates nor the regulations themselves

place any limits on the nature and extent of permissible 

regulation of the Churchyard, and accordingly, the regulations 

reach a wide range of matters related to the Churchyard, 

including disinterment. Not only do the regulations contemplate 

disinterment, but by requiring the church's consent to disinter, 

they do so in a manner that makes clear that the church

exercises control over the prospect. Further, the certificates

put no constraints on the church's ability to amend the 

regulations as it sees fit.

In sum, there is nothing in the plain language of the 

certificates and attendant regulations that prohibits

disinterment by the church. It was permitted under the 

certificates to regulate the Churchyard and amend the 

regulations, and it did so. Its planned course of action 

pursuant to the amended regulations therefore is, as a simple 

matter of contract law, permissible. See Green, 223 Mass. at 4 

(applying contract law to conclude that, where party to burial 

certificate committed breach of contract, disinterment was 

permitted). Cf. Feeley v. Andrews, 191 Mass. 313, 316–317
9

(1906) (licensee could not maintain action for damages over 

disinterred remains).

2. Burial law. The families respond that the church's 

contractual authority under the certificates and regulations are

circumscribed by our common law. They urge us to recognize that

certain trust-like property rights are held by all families of 

those interred, rights that the church may not regulate out of 

existence by contract.

Although entanglement with State action prevents it from 

being squarely on point, Sohier v. Trinity Church, 109 Mass. 1

(1871), is nevertheless our most apposite case. Sohier

concerned the plan of Trinity Church (Trinity) to sell its land 

in Boston and relocate to a new location in the city. Id. at 

16-17. The prevailing law at the time compelled Trinity to 

obtain legislative authorization for the sale. Id. at 17.

Under Trinity's buildings were dozens of tombs, and the

"representatives" of four of those tombs -- presumably family 

members of the deceased -- brought suit to enjoin the sale and 

prevent disinterment of the tombs' remains. Id. at 2, 6-9. 

Resolution of the matter required us to consider both the extent 

of the power available to Trinity, as authorized by the 

Legislature, and the nature of the rights held by the 

plaintiffs. As to Trinity, we concluded that authorization of 

the sale and removal of the remains was constitutional under the 
10

Legislature's police powers, given that the Legislature had 

determined that leaving the remains in place would be a danger 

to public health. Id. at 21-22. As to the families, we noted 

that burial rights are "peculiar . . . and are not very 

dissimilar to rights in pews," that is, "qualified and 

usufructuary right[s], being a right to occupy under certain 

restrictions." Id. at 20-21.

Weighing those qualified rights against the Legislature's 

empowerment of Trinity to consummate the sale, we concluded that 

Trinity was "justified in removing the bodies and remains 

interred under their church."8 Id. at 22. We further observed

that there were many such situations where the need of a church 

to close and sell its property would permit, or even require, 

any remains on that property to be relocated:

"There are other causes which are obviously sufficient to 

authorize the removal of bodies and tombs placed under a 

church. The edifice may be consumed by fire, or otherwise 

destroyed; or it may decay; or the place may become 

unsuitable for such a building; or for various other 

reasons it may be proper to abandon or sell it. And in 

such cases it would be improper to leave the tombs and the 

remains deposited in them; obvious propriety would require 

8 In so concluding, we cited with approval several cases 

from other jurisdictions that authorized disinterment under 

similar circumstances. See Sohier, 109 Mass. at 21-22, citing, 

e.g., Windt v. German Reformed Church, 4 Sand. Ch. 471 (N.Y. 

1847) ("it was held that the sepulture of friends and relatives 

in a cemetery belonging to a religious society confers no right 

or title upon the survivors, and they cannot prevent a sale of 

such cemetery by the corporation and the removal of the interred 

remains, when such removal is in all respects conducted 

according to law").
11

that the remains should be removed to some suitable place; 

and . . . the owners of the tombs and the friends of the 

deceased have no title to the lands, but only an interest 

in the structures and in their proper use . . . ."9

Id. at 22-23.

While we realize that there is no State action or 

authorization by the Legislature here, the same principles

discussed in Sohier apply. Sohier does address the nature of 

the rights of decedents' families, and whatever common-law 

property rights the families have here can be no more extensive 

than those analyzed there. Applying Sohier's principles, we

conclude that the failing membership and financial unviability 

of the Church of the Holy Spirit -- both facts that are 

undisputed on the summary judgment record -- make it "proper to

. . . sell" the church's land and permit it to relocate the 

cremains as a necessary condition of that sale. Id. at 23.

This conclusion is further supported by our cases regarding 

pew rights, which, as Sohier pointed out, are analogues to 

burial rights. Pew owners are holders of "qualified, subsidiary 

and dependent" rights, and our law has consistently held that if 

a church closes "not wantonly or unreasonably or with intent to 

9 Presumably because of takings concerns, in this paragraph 

we also noted that, in relocating the remains, "the public 

authorities do not violate [the plaintiffs'] rights of property, 

if proper provision is made for compensation or substitution." 

As the Church of the Holy Spirit is a private actor, no similar 

issue arises here.
12

injure the pew holders . . . , the pew owner is without remedy." 

Massachusetts Baptist Missionary Soc'y v. Bowdoin Sq. Baptist 

Soc'y, 212 Mass. 198, 200–201 (1912) (collecting cases). 

Indeed, we have held this to be true in cases of church closure 

due to failing membership:

"Now as every member of a religious society may at any time 

dissolve his membership at his pleasure, it may often 

happen that the members of a religious society may withdraw 

therefrom in such numbers as to disable the society to 

maintain public worship; and when a religious society or 

parish is thus disabled, it is clear that the pewholders 

would have no cause of complaint if the society or parish 

should abandon their meetinghouse, and wholly cease to 

occupy it as a place of public worship."

Fassett v. First Parish in Boylston, 19 Pick. 361, 363 (1837).

Review of our limited cases addressing burial rights 

reveals no common-law rights of the kind asserted by the 

families.10 Given this lack of Massachusetts authority, the 

families urge us to adopt the reasoning of Hines v. State, 126 

Tenn. 1 (1911). In Hines, the Tennessee Supreme Court examined 

10 The next closest case we can identify is Messina v. 

LaRosa, 337 Mass. 438 (1958), where a decedent's second wife 

scrubbed the deceased first wife's dates of birth and death off 

of the family tombstone and relocated it to a new plot for her 

own use. Id. at 440. The second wife changed the dates on the 

tombstone, and not the name, because -- improbably -- both women 

were named Josephine LaRosa. Id. at 438-440. We acknowledged 

that the first wife's sister had standing to sue for restoration 

of the tombstone based on the sensational facts of the case, 

tellingly disclaiming reliance on any generally applicable 

common-law rights: "This [holding] is not an application of any 

rule of property law, but is a recognition of principles of 

ethics, propriety, and common decency which equity is peculiarly 

qualified to enforce." Id. at 442.
13

the rights of family members in a family burial plot on land 

that had passed from family ownership to strangers. It held 

that the family had the right to access and maintain the plot, 

proclaiming the existence of trust-like rights:

"When land has been definitely appropriated to burial 

purposes, it cannot be conveyed or devised as other 

property, so as to interfere with the use and purposes to 

which it has been devoted. When once dedicated to burial 

purposes, and interments have there been made, the then 

owner holds the title to some extent in trust for the 

benefit of those entitled to burial in it, and the heir at 

law, devisee, or vendee takes the property subject to this 

trust."

Id. at 4-5.

Even if we were to put aside that the certificate and 

regulations control, and Sohier's teaching that no common-law 

rights preclude disinterment here, we would still think that

Hines is a poor fit for the case at bar.11 The land at issue 

there was a small family burial plot, those interred there were 

buried when an individual in the family was its fee owner, and 

the context of the discussion was a criminal prosecution. The

dispute was not between a church and parishioners over burial in 

a churchyard, and there was no governing contract or 

11 Hines was considered by the Appeals Court in Sanford v. 

Vinal, 28 Mass. App. Ct. 476 (1990), on facts that were much 

more similar than those of this case. The Sanford court never 

reached the issue whether Massachusetts should adopt Hines, 

however, because the family burial plot in question had been so 

long abandoned that it could not be located. See id. at 486-

487.
14

certificate, nor any regulations authorized by such a contract. 

Moreover, Hines no longer even governs burial ground closures 

and disinterment in its home State, having been superseded by 

statute.12 See Tenn. Code Ann. §§ 46-4-101 et seq. (establishing 

statutory scheme for closing burial grounds and relocating 

remains).

We see no need to adopt Hines here, where we may 

comfortably decide the case by applying Massachusetts law. 

Nowhere does our law forbid the Church of the Holy Spirit from 

disinterring the cremains in the Churchyard. Rather, the 

closest analogues in our case law provide that this is the type 

of situation where relocation of the cremains is proper.13 See 

Sohier, 109 Mass. at 22-23.

12 In a concurrence in an earlier case, Chief Justice John 

Shields, the author of Hines, opined that burial grounds' 

"sacred character" rendered them "forever withdrawn from all the 

incidents to which other real estate may be liable," including 

eminent domain. See Memphis State Line R.R. v. Forest Hill 

Cemetery Co., 116 Tenn. 400, 422 (1906). Chief Justice Shields 

was buried in a family plot on his estate in 1934, and just a 

few years after his passing, his remains were disinterred and 

relocated when the Tennessee Valley Authority built the Cherokee 

Dam and flooded the area. See Paine, Cemetery Law: Moving 

Chief Justice Shields, 49 Tenn. B.J. 35 (Sept. 2013).

13 In light of this conclusion, we also reject the families' 

argument that the church's amendment of the Churchyard 

regulations violated the covenant of good faith and fair 

dealing. Cf. T.W. Nickerson, Inc. v. Fleet Nat'l Bank, 456 

Mass. 562, 573 (2010).
15

In other circumstances, a different result might obtain. 

As with past disputes over burial rights, future disputes will 

turn on the particulars of each case, including the language of 

the instrument granting the rights, see Feeley, 191 Mass. at

316–317 (documents in evidence established, at best, revocable 

license to be buried); the relationship between the parties, see

G. L. c. 114, § 32 (establishing statutory right to burial "in 

any burial lot or tomb of which [one's] spouse was seized at any 

time during marriage"); the status of the burial ground, see

Sohier, 109 Mass. at 21-23; and any other relevant equitable 

considerations, see Messina v. LaRosa, 337 Mass. 438, 442 

(1958). On the particulars of the case before us, summary 

judgment was properly granted.14

Conclusion. Although we resolve this case by applying 

long-standing legal principles, we, of course, recognize the 

human element involved. We also reiterate that in other 

circumstances a different result might obtain. Disinterring the 

remains of one's ancestors will forever be a sensitive, 

difficult prospect. To repeat our words from Antoniewicz v. Del 

Prete, 340 Mass. 742, 743 (1960):

14 As we decide the case on nonconstitutional grounds, we 

need not consider the argument that a declaration that the 

cremains may stay in place would violate the church's or St. 

Philopateer's constitutional right to the free exercise of 

religion.
16

"The court is fully aware that a decent respect for the 

memory of those who have been buried requires that there be 

no disturbance of the remains of one deceased unless the 

law as applied to the particular circumstances compels such 

a conclusion. Here, with considerable reluctance, that 

conclusion seems necessary to the court."

The judgments of the Superior Court are affirmed.15

So ordered.

15 The Superior Court's declaration included certain 

deadlines for compliance. Should the parties believe that the 

terms of the declaration require modification owing to the 

interval between its initial entry and entry of the rescript 

from this court, they may move for modification in the Superior 

Court.