Year: 1879

are legally bound to do must be regarded as
donel to Denis Coppers his heirs and as.
by him and them for the purpose OF buryng their
dead a conveyance in that form had been ex-


ties? To the answer OF this question the discussion
will now be directed.


INSTANCES IN POINT


In the matter OF the Brick Presbyterian Church
Is Edwards ch Hep. 1851 the question be-
fore the Court. The corporation had many years
executed sundry cOnveyances and also leases tor 800
years OF certain pieces OF ground in the cemetery
belonging to it, tor the purpose OF constructing
vaults to contain dead bodies and these
were construed ito sell dispose the land and
not 10 grant mere temporary use or privilege to
construct vaults IN the land with re-
further held to be 'base fee (page 169l
because the and objects for which it
to be held were limited. (See also Bradford 503.
&c. the opinion OF Mr.. Samuel b. Ruggles.) Ii one
Of the owners of grednd held for vault had died.
and his relatives had sought to place his body in the
vault which he had constructed, would it have been
in the power of the Church corporation to have
prevented its deposit therein upon the ground that
The deceased was an Episcopalian and not a
was a member of the Masonic or any other Order?
Manfestly not. for the corporation had parted with
all control over the property, except that winch the
grant itself provided, something growing out or
the and objects thereof. If burial was to be
should have declared And what is true and
sound in the supposed is equally so in these I'M
der consideration The defendants are to DC regarded
in the position of grantors OF fee OF land to De
used and enjoyed however. by the purchaser, his
heirs and assigns Tor burial purposes only II his
rights were to be IN any wise limited such iimita


on should appear in the instrument ITSELF and not
appearing dogma decree Of church. how
right or proper itself 1t may be. however
capable of being enforced il the and right bo
properly reserved can be inerposed to prevent the
cherished ANA natural wish OF the deceased to have
his mortal remains deposited by the sidc OF those of
his mother from being fulfilled


Nothing inconsistent with the doctrine which has
been enunciated was held in Wipdt VS.. German Re-
formed Church a Sandford, ch. 471), The Vice
Chancellor, it is true, did decide that burial
and the payment OF charges therefor gave title to
the land. but he also held (page 474) When vaults
or buryng lots have been conveyed by religious cor
porations, rights of property conferred upon the
purchasers This was the case with the corporation
of the Brick Presbyterian Church 6 Edw., ch. r.
1857 The right is like that other real estate
and is perfect without sepulture it is when the
grantee has used it for that purpose


1t is objected. however. the part of the de-
PENDANTS that by their act of incorporation chapter
239 OF Laws of 1877 section ~ there could be
veyance OF an interest i'll the land without the per-
mission OF the Court. for IT is therein declared that
trustees to sell the real estate unto the
said Cathedral or congregation belonging. with
rs Sn the had apd Obtained in the manner
required by the laws" 1t is. at least somewhat
doubtful whether parties who have assumed to make
and execute apparently valid contract for the sale
OF interest in land, with the unrestored full pur
chase price i'll their pockets and possession given to
the grantee are in position TO prevent the of
the property in conformity with it's mani
fest object upon such q ground and whether
or not in the absence of proof such consent
as the law requires will tnot be presumed. (Bowcn
and McNamee Trustees OF the Irish Presbyterian
Congregation in the city of New York, 6 Bosworth.
this suggestion it is apparent that the permission
OF the'Chancellor was only required to such sales
as to wbea Il was TO Se ssd and no
to such as were designed to carry out the
objects and purposes of the original grant to the
defendant by the act Of 1864 chapter 81 the lands
known Calvary Cemetery are held. and the de-
PENDANTS empowered to "use" them "for GEM
etery purposes" The conveyance of family plots
for such object is part and substantial part Of
the manner in which cemeteries are used by cor
approval of each sale for such object would
be unnecessary and is not within the
purview OF the statute. And even though this OBJ
ownership of the land It would not be valid to
prevent this instrument from operating to confer
poses Of the present inquiry must be ample to afford
the relief sought unless for other yet to be
considered, 1t must be refused.


OBJECTIONS coNsIDERHD.


1t Is true, urged by the learned counsel for
the defendants. that every person who dealt with
them was bound to know that they formed cor
and that they had power to make lawful bylaws but
under rule OF law known to can 1t be presumed
ters of contract aud his money for property
rights. which 1t assumes to convey, without re-
striction is bound to know of articles OF faith
private regulations OF the corporate body which will
make the purchase valueless aud the written grant
Of avail. Such doctrine would unsettle well
established principles and especially that one which
declares that writing is presumed to contain the
entire agreement OF the parties. Entertaining this
view. it has not been deemed necessary to
examine the question whether or not the defendants
justified by the law of the Roman Catholic
Church prohibiting the burial Of the body OF the
late Denis Coppers In the lot purchased by him upon
the ground that he was . non-Catholic or Mason.
II the law OF that denomination does justify such
action 1t is held to be imperative In this instance
by reason of the written contract. which has been
executed and. therefore, without the discussion of
the point just stated. some technical objections will
next be considered.


1t was also strenuously argued that the relators
and plaintiffs have standing to maintain either
the action or proceeding. because they have no
title to the burial plot. and they not
the next of kin. ls this objection sound?
died the 14th day of August. 1879. Arrangements
were made to open the grave on the 10th of the
same month, and the funeral was on the
rected the interment OF his body TO re-
peat his own words) 'in Calvary Cemetery.
and in the burial lot Of ground owned by me
there" The burial as directed by will was forbid
den by the defendants on said 18th day Of August
but permission to place tho body in the receiving
vault was given. On the next day august ls) the
relatives Of the deceased resolved written notice
from the person who had signed the original re-
ceipt for the purchase money of the lot. "that
the remains OF the 'lato Denis Coppers can
not 1e Kept IN receiving vault ior more re
that time they will be inferred in the
ground" The children OF the deceased were infants
age Of thirteen years. The will OF Denis Coppers
was not admitted to probate until tho 25th OF Au-
gust 1917. Wnen IL became necessary, tnen, 10
initiate this suit and proceeding and when they
in fact commenced. there executors
qualified to act. and children of sufficiently
mature years to determine what should be done.
Under such circumstances the three brothers
land the deceased left no other brothers or Sis
ters nor father or mother) commenced both the
proceeding action to protect the remains and to
compel burial i'll the spot which the deceased had
himself selected. Is the law SO inhuman as to de-
clare that these brothers. who the nearest of kin
to the deceased, who OF the age Of discretion.
have standing in court to effect their pious
and loving intent? Nc attempt will be made to dis
pute thepro position of the learned counsel for tho
defendants. that the relators aud plaintiffs are not
"the next of kim for the deceased left children
they could not be; but the admission of that prop
osition does not admit the conclusion for which
they contend. As the next OF kin Of full age. the
plaintiffs and relators. i'll view OF the help
lessness and infancy of the children OF the dead
brother. owed TO that stricken family tho moral
duty ut least, and perhaps. the legal one OF super
intending the burial of the remains II that duty
not one which the law would compel 1t Will at
least respect ii when it is voluntarily assumed and IL
vii M 81 pse ~ ia IN w n