Evening journal., 1916-08-05

to the state. The judicial branch
OF such Jurisdiction is exercised by
the court OF chancery as being best
adapted in that behalf by its consti-
tuition and powers. The exercise Of
the ministerial branch may be the
subject OF legislative regulation.
After the conveyance by Stdham
and prior TO the act Of 1744 the trus-
tees. overseers and elders OF the
Presbyterian church" had power
and discretion 70 select and, ascer-
tain the individuals who should he
permitted. upon proper compliance
with rules and regulations, 10 acquire
burial rights, and after the act OF
1744 the corporation defendant and
it's predecessors in title under and by
virtue of the legislation hereinbefore
recited possessed the same power and
discretion.
Vested With. a Right
Land set apart for the decent in
terment of the remains of friends and
relatives. the erection OF tablets. and
monuments to commemorate their
lives and virtues, and the beautifying
OF the grounds consecrated to them
by the tears Of their survivors is in
the truest sense dedicated to a pious
and charitable use. Though there be
no strict property in a human corpse
or the ashes representing It, when
those having the control and man
agement of a cemetery execute the
pious and charitable use by allowing.
whether under a deed or other for
NAL contract or only a permit, writ
ten or oral. the acquisition of a burial
lot or space. and the interment Of
such remains therein and the in
curing of expense in or about the
interment, or the construction of
vaults or erection of memorials or
the suitable ornamentation of the
grounds. the friends or relatives OF
the departed. being or representing
those who obtained such deed. con-
tract or permit. are vested with a
right. OF which they cannot arbitrar-
! lily be deprived to possess, care for
and maintain the burial lot or space
until that right is lawfully and by
proper authority terminated.
When one applies for a burial lot
or space and the right of interment II
is to be assumed, in the absence of
stipulation or clear understanding to
the contrary, that both parties con-
template and intend that he should
possess a permanent right of occu-
patton of the spot allotted for the last
resting place of the dead. Even in
the absence of a deed or other writ
, ten imminent of title such right
/ should be enforced in equity as a
right growing out of an executed Ii
cense as above mentioned.
There is in evidence a>deed bearing
date February 1, 1S43, purporting TO
be from the Trustees of the First
Presbyterian Church of the Borough
of Wilmington" to Nelson Cleland. his
heirs and assigns, for the lot on which
stands the Cleland monument, "for the
use and purpose of a private ceme-
terry or burying ground for the dead,
and TO and for no other use or pur-
pose whatever; the same to be sub
ject to and chargeable with a due
proportion of all future expenses and
the rules and regulations necessary
for keeping the aforesaid graveyard
u or burying ground in general good
condition and repair" The attesta-
e ton clause, seal and signatures are
T. as follows:
. Witness the corporate seal OF
% the said Trustees of the First
Presbyterian Church of the Bor-
ough Of Wilmington hereunto af-
fixed this first day of February,
Ammo Domini one thousand eight
/, hundred and forty-three.
James Gardner.
= President of the Board Of Trus-
tees
Sealed and delivered in the
presence Of
James Riddle.
John Brown"
= Provision i'm the VIII.
Cleland died in 1854 leaving a will
d duly proved. allowed and recorded
r which contains the following provi
If sion:
v II nearby appropriate the sum o
= SO, 900 for the construction of a vaul
d and the erection of a monument ol
j. the lot owned by me in the buryin
ID ground attached to the First Presby
Is terian Church on Market street be
10 tween 9Th and 10th streets in the Cit
B. OF Wilmington, and / direct my re
s, mains shall be deposited in the sal
le vault. l appropriate said sum for tn
r purpose of manifesting my regard 70
lie the Presbyterian religion and wit
C. the wish of adorning and beautify
v ing the ground in which are interre
d. the remains of many near and dea
r relations, and where 1 trust my des
ID cendants may repose peacefully by m
L side"
s. II is clear from the affidavits an
e. exhibits that the name First Pres
as byterian Church of the Borough c
Sc Wilmington" was through inadvei
ne tence or otherwise inserted in tn
c. deed in lieu of First Presbyteria
'n Congregation of the Borough
Wilmington" the correct name of III
r predecessor in title at that time
ed the corporation defendant. There
n in evidence certified copy of a
es assignment bearing date Februar
y 10. 1910, by The First Presbyteria
r. Congregation Of the Borough OF Wi
as mington" Of a mortgage, the san
he being executed by James Gardne
'st President OF Board Trustees" and I
'r- him acknowledged to be the act an
he deed of the corporation.
ey The deed to Cleland was execute
RS. in the name of First Presbyteria
e. Church OF the Borough of Whining
tie ton" but by James Gardner, Pres
nd dent OF the Board OF Trustees" II
or defendants have offered no eviden'
'es tending TO show that there we're w
ch distinct corporations in Delaware
er the time the deed was executed. OF
Is being the First Presbyian Church
the Borough OF Wilmington" and u
other the First Presbyterian Col
zee gregaton OF the Borough of Wilminl