New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1856-04-07

Irnon ths state of facts the referee held that Ill
,hou,b sccordinc 10 the doctrine laid down by
yice. Chancellor McCouu, in Edwardss Ons"-
cery Rp. I55, upon the construction Of these very
deeds the grantees had title in the land, and not
a mere easement or privilege to bury the dead ye'
that the title they had was not fee simple ou' d
"base fee" Of very limited character. According
10 the LAWYERS the owner Of the fee owns upward
uscue cd oqlum-that is, up to heaven-and down
ward usque nd interos, down to-another pace not
to be mentioned to polite ears; but the vault
holders in these cases could by no means claim any
such extent of dominion. They had no right above
the surface, but only beneath it, All above Inc
surface belonged to the church, with the right to
use IT, not merely for light and air. but even to ex
tend the church edi6ce ever it, reserying TO vault
holders their right Of interment.
In determining the pecuniary value OF TINS
"base fee" the referee took into account the
value Of vaults in other downtown church-yards,
and their value also in Greenwood Cemetery with
the cost Of removal ard reinterment there, which
| had been done as to most OF the bodies; ana ne
allowed to each vault-holder $500, amounting in
the whole with the accruing interest, to 7'5i2 ~.
In addition to the ground occupied BY the vaults,
there were two small spaces, containing eighty
| graves in which were a hundred bodies. VI these
bodies only five were identified and as to only
ONT Of these had any controversy arisen. The body
of Moses Sherwood, whose grave was indicated BY
a marble headstone bearing his name, was iden-
tied by his daughter, by means of ribbon found
l1p with his skull and bones by which his hair
had been tied in queue. Acting for herself and
the other descendants of her father, this daughter
claimed the control Of the remains of her father,
and that they should be buried in such suitable
place as she might select, and the existing monu-
nent be erected over the grave, all at the ex-
ptnse of the church, or out Of the money allowed
fer the land. To this the church did not object,
but as there were doubts of the legal rights of the
| daughter in the case, tire direction of the Court
was claimed
Into this point, namely: the legal interest which
descendant and representative possesses IN the
remains Of bis ancestor, the referee has entered
with great ZEAL and has treated it in his printed
report in a very elaborate manner. Itappears that
by the law Of FL gland as laid down by Lord Coke,
if monument be erected to deceased person In
church or churchyard, not even the parson or
other person in whom the freehold of the church or
churebyard may be, can take it down or deface it,
and that should such thing be done, the parties
concerned in it will be liable to an action OF law on
the part of the heir to the remOtest generation OF
him in whose honor the gravestone is set up.
But though the common law thus sedulously
! protects the monument, it gives no remedy tor
r A. for ,rhich me | ord
| Coke gives the following reason: "The burial
"of the codarer that is, zero data rernibss flesh
given to wo1ms-one of those ridiculous etymo-
ogies in which this learned lawyer loves to in
| dulge1 Z" is nallus in bOns," mot matter OF
| property "ard belongs TO ecclesiastical cognlz-
"ance" 1t is we'll known that the Roman
| Church sought to fasttn itself upon the devout in
terests and mi st tender sympathies of men by
putting itself forward to assume the entire legal
control Of matters relating to birth - since the
newborn was neither recognized as citizen or
Christian till after baptism, to which, as puberty
| approached, confirmation was TO be added-nar-
riage and death Hence it was that the Church
assun ed to itself the distribution of the personal
goods of deceased persOns, while the idea was
attain to peace unless the body rested in conse-
Grated ground, which body, once delivered to the
Church, passed. az it were, out Of the cognizance Of
mere secular tribunals.
Itseems probable however-though this is point
| which tie referee has not examined-thst althO Ugh
in England no action ct common law would be
brought against the owner Of the fee, or perhaps
not against any body for merely disturbing grave
where there was no disturbance Of monuments, yet
THAT rem edy mig hit be had in such cases by pro-
ceediDgs in the Ecclesiastical Courts. But in this
country we have no Ecclesiastical courts. The
Eccle siastica element is totally eliminated from
| our jurisprudence. Remedies are to be sought for
ali wrongs in the civil courts, and it seems to the
referee in this case, and also to us, that the same
r. aspect for the common sentiment of reverence with
which the dead are everywhere regarded, which
gives to the heir legal interest in the preservation
of his ancestors monument, gives him also like
legal interest in bis ancestors mortal remains. And
accordingly the report appropriates 800 of the
awarded money, or SO much Of it as may be needed
for that purpose to the renterment of the remains
of Noes Sherwood in such reasonable locality as
his daughter may select; the money to be expended
under her direction.
TIE distribution Of the 500 900, with the accru-
ing interest as suggested in the referees report,
was as follows: 1888 to the City Cooperation for
extinguishment of ground rent; s3,233 SO to the
vault owners; Sl00 for the re-interment of Moses
SbeIwOod and the residue, amounting to 1888
a