Evening journal., 1916-08-05

alienation could no more exist than
could power 70 nullify or get rid Of a
valid lien or encumbrance on the
land to secure the payment of money
not yet due. II the maintenance of a
cemetery under a valid charitable or
pious trust in perpetuity should prove
detrimental 10 the public health, that
use so far as so detrimental could be
! controlled or terminated by a proper
: exercise of the branch Of soveFeignty
known as the police power OF the
state.
: So. should the land impressed with
such trust or use be required for a
p public purpose inconsistent with its
continuance IL could be condemned
J and taken upon the making or Sc
curing Of just compensation. through
an exercise Of the sovereign power of
eminent domain, and thereupon the
trust or use would terminate with
respect to the land so condemned and
taken. And equally, II at the time
land is conveyed by way of a valid
charitable or pious trust or use, there
, be a statutory provision for the term
lnation Of such trust or use OF for the
< conveyance OF the land free and dis
q charged therefrom. upon compliance
= with certain requirements. not only
e the creator of the trust or use but in
e the absence Of grant. contract, es-
{ toppel or other special circumstances
enuring to thehr protection, individu-
! ais subsequently becoming benefic-
e iaries thereof or interested therein
as the case may be, must be treated
+ as having created the trust or use or
! as having acquired rights therein in
- arhnrafnnffpY 10 the rtfhf a n
20 ate the trust or use or to convey the
e land discharged OF the same upon such
{ compliance and consequently to have
4 consented thereto. Persons in enter
Q ing into contract must be held to
y adopt as part thereof existing sub
10 stantive law relating TO It's subject
d matter. But here there has been no
= attempt to invoke the right of emin-
e ent domain, or the police power for
4 the protection Of the public health,
L nor was there in existence prior TO
r the conveyance from Stidham nor at
I any time since nor is there now any
o statutory provision for the termina-
- tiOn of the trust or use in question
- or for the conveyance Of the land
free and discharged therefrom.
l. Wide Range in Argument.
a Counsel on this application have
'- taken a wide range in their argu-
II ments and have raised a number OF
= points unnecessary now 20 be decided
u This is not a suit by the heirs OF
Is Stdham or by others claiming under
= him for the establishment of re-
3 sulting trust in the land included In
" the cemetery or any portion of 1t. MOI
y is IL a suit for the recovery OF land
Is for breach Of a condition subsequent
IT No question of resulting trust ol
't breach of condition subse'
re quent is properly before this
e court. Aside from the attempted
,e sale and conveyance to Bailey for th'
= purposes of a public library, there
has been no abandonment by th'
A. corporation defendant or any at
y tempt by it to abandon the pious o
60 charitable use or trust under th'
. deed of Stidham with respect to tn
u whole or any part Of the land II
10 the cemetery.
"a Il appears, Il is true, that sine
~, the year 1906 there have been no in
80 terments there: but the cemetery
- until the contract 10 convey to Bailey
= always continued TO be properly car
= ed for and kept in repair, and main
so tained as a cemetery. II is well set
. tied that II is not necessary to tn
- continued existence Of an established
es cemetery or to the protection o
- bodies, graves, vaults, monuments
-, and other structures within 1t, or L
- the right of the owners or holder
~, of burial lots therein, that ther
so should be no cessation OF interments
W
g The land conveyed by stdham I
Ia N4FFf a "a
Church was for several uses. namely
for the use of meeting house an
of a burying ground. and such othe
, pious uses as the managing body q
"a that unincorporated religious societ
u should deem proper. There wa
u however, no provision in the dee
,eu determining what quantity or pre-
vi portion of the land conveyed shoul
e be devoted to any one Of the piot
or charitable uses therein referred
d" or indicating of its situation with n
spect to the rest OF the tract 1t wa
therefore, left TO the society in n
sea exercise OF its discretion to detel
mine the parts and proportions OF n
hu land and their locality which respe'
'n lively should be devoted to the se'
'eu eral uses for which IL was intende
d Accordingly, as before stated, a po
Jus ton OF the land was set apart ar
ION appropriated to the use of NEE
.ue ing house. now known as the Hi
lns torical Society Building, and subs
,ne quently another part of the land WI
mes set apart and appropriated TO the III
OF Of a church building known as II
III First Presbyterian Church. now o
re- cupied and used by the corporate
mn defendant.
Is with the exception of the two po
IN tions so set apart the land includ'
tea in the deed from Stidham has ir
memorially been held for the purpos
ana Of and in great part used as a bur
or ing ground or cemetery. The co
oe poration defendant is not nor W
mt either OF its predecessors in title, q
l II Presbyterian church and the FIJI
oe Presbyterian congregation OF the be
der ough OF Wilmington. engaged in 4
ing business Of making or raising mon
uly for distribution among its membe
'us- In this regard the corporation d
ma fendant and its predecessors in IN
are have occupied a different position al
nd- status from cemetery companies
IN associations having beneficial featur
TO of a pecuniary character, as 70 whi
10 doubt has been expressed wheth
ana the purpose for which they exist
rust included among charitable uses
lald Charitable Trust.
OF Stidham having by his conveyan