The New York herald., 1879-11-14
MUST RECEIVE SEPUL7URE
Denis Cappers' Remains to Res! Beside Those
Of His Mother in Calvary.
JUDGE WESTBROOK'S DECISION.
The Sale Of a Cemetery Plot an
Absolute Transfer.


The question as to whether or not the body of
Denis Coppers shall be buried in Calvary Cemetery
decided yesterday by Judge westbrook.- 1t Will
be remembered that upon the decease of Mr.. Cop
pers, his brother sought to bury him in the family
plot, but was refused q permit ON the ground that
deceased was free Mason. and, as such. under the
rules of the Roman Catholic Church. could
not be inferred in consecrated ground. The
matter brought before the Court in
its various phases and finally came before
Judge Westbrook application for a
peremptory mandamus directing the burial OF the
deceased On this application Mr.. John E. Devn
appeared for the cemetery trustees and MIR. Charles
W. Brooke for the brother of the deceased. who ap
pears the plaintiff in the present proceeding. BY
Mr.. Devlin it was argued that the deceased not
entitled to burial because he was not member Of
the Catholic Church. and being such, under the
rules of the Catholic Church his body could not be
inferred IN consecrated ground. II he was
a Free Mason it was his duty to have said
so. and the plot would not have been sold TO him.
The receipt for the plot. it further urged. was
not a conveyance in fee simple. but mere evidence
of money paid. On the other hand 1T was urged by
Mr.. Brooke that the plaintiffs the proper parties
bring the suit and that the receipt which the
plot for the purpose of burying bodies in it. He
denied that Vicar General Quinn. in his affidavit
had stated the facts in relation to the exclusion
of Free Masons from Roman Catholic cemete-
ries. In support of this he read the de-
cree Of the Second Plenary Council of Baltimore
to the persons to be deprived Of Christian burial
In that decree it appeared. nothing is said about
Free Masons, unless they may inferentay be classed
among "those who notorously communicated
and to be avoided"
JUDGE wEsTBRooKs DECISION.
Judge westbrook's decision is very elaborate
and exhaustive review Of the intricate questions Of
law involved, and is given in full below
The first or these matters is proceeding by man
damus. instituted by three brothers. who are the
only next of kin Of one Denis Coppers. deceased
cept- two minor children Of the ages Of nine and
thirteen years respectively to compel the interment
| by the respondents of the body Of the said
oSssed by him IN his ifetime and the
second is action brought by such brothers in this
court to prevent the removal by the defendants Of
the body of said Denis Coppers from the receiving
vault of said cemetery. except for the purpose OF
burial is sought to be compelled by the first pro-
ceeding
| The proceeding was originally instituted against
Calvary Cemetery. Hugh Moore and James O'Rorke.
the duties and functions of such officers. and
| being the Committee on Cemeteries OF such cor
poration. as such officers trustees and committee"
! Cemetery" but by stipulation Of counsel and the
order of the Court. 'rhe Trustees OF st. Patrck's
Cathedral in the city of New York" substituted
as respondents in the proceeding and as defendants
in the action in lieu and in the place of those first
| created by chapter 239 OF the Laws of 1877 of
| this State, and thereby empowered to hold
said aet % ana among others the said Cathedral and
burying place thereto adjoining. BY virtue of
chapter 81 OF the Laws OF 1864 the defendants also
burial PURPOSES and those lands are known as Cai-
| vary Cemetery"
| <ha1 1afa
executed and delivered to the said Denis Coppers,
who then living. but is now deceased an insru-
ment in writing in the words and figures following,
to witt
| orncx OF CALVARY CExErKRx..
Received from Mr. Denis Coppers seventy Eve dollars,
being S PushssS f plfs &
sssss Sssssss IS Graves. sl91 g. = P rs
Denis Coppers departed this life on the 14th day
of August. 1879. at Hoboken in the State Of New
Jersey: and by his Last will and testament directed
| that his body should 'be buried in Calvary Come
| terry. New York, with or near the remains OF my
mother, and in the burial lot of ground now owned
by me there. In such will he further said: u do
hereby declare my wish and desre,to be that my
| funeral Services be had and held in some Protes-
tant Episcopal Church. and that such services and
funeral shall be under the direction. control and
management Of the Order OF Ancient Free and Ac-
On the 10th day of August. 1879. the undertaken
who had charge of the burial at the request OF the
relators and plaintiffs, made application at the office
purchased. che % as before % mentioned and paid to the
parties in such Office the sum OF 81 for tho
labor Of such opening, which money ac-
cepted and receipt gwen therefor On the
succeeding day august H. 1879. upon the arrival
| of the funeral procession with the body of Denis
Coppers the in the burial plot and in the
which had been prepared was refused and for
| hidden, and permission given to place the same
temporarily in the receiving vault OF the cemetery.
from which its removal and burial elsewhere than
in the lot of deceased wero Threatened. when this
| proceeding and action were commenced for the
| objects bkfore stated.
Various objections have been made to both the ac-
ton aud proceeding. founded upon technical
grounds which VIII De HeTesi9.
| is "a corporation attached to the Roman Catholic
Church. and claims the right to exclude and forbid
the interment of the body the lot purchased by
| Denis Coppers in his lifetime, because such
burial would be contrary to the doctrines
OF such Church, which it is claimed forbid the burial
in consecrated ground of tire body of non-Catholic
or Of one who was member of the Masonic frater-
nity As the point just stated is the most important
| one involved it will be first examined.
1t is not doubted that the defendants have full
| power. when they have parted with no rights by
| conveyance or contract, to control and regu-
| late interments in the grounds which they hold
! for that purpose; and IL the doctrines of
| the Church to which they arc attached forbid the
burial OF the bodies OF non-Catholics or of Masons
they properly in such cases exclude such there
from. This right is not now questioned. but 1t is
| claimed by the relators and plaintiffs that the de-
PENDANTS have, by an instrument i'll writing parted
with sucn H. riEn.i & having ~ iAc. conveyed ane Zee
Lutte aud unqualified right, to Denis Coprcrs. his
heirs and assigns. therein for the purposes of burial
The paper executed to Denis Coppers In his life
! time Is certainly not deed, which OF itself would
transfer the fee but as it is duly signed executed
and delivered by o1icer.of the defendant corpora
| ton, whose authority to make valid instrument
| OF that character is not questioned, and as
| it declares that si5 has been paid the
| purchase money OF q plot OF ground sx5
| feet in Calvary Cemetery" which plot is.
! by other words and figures in said writing
contained, capable OF exact location aud ascertain
nent and tho deceased In his lifetime took actual
possession of such plot by placing therein the re-
maius OF members OF the family IL IL difficult 10 say
why under the well known maxim of the law that
'.what has bcen agreed to be donc ana what ought
to be done shall for the advancement OF justice. DO
regarded DONE" 1t should not be treated
as % deed in fee. The acknowledgment by
a writing duly subscribed by the owner that such