The Clergyman's Hand-book of Law: The Law of Church and Grave

by Charles Martin Scanlan

D. BRENNAN,

Superintendent of Calvary Cemetery.

4 Graves, 5, 6, 7, 8, Plot D, Section 7, Range 35.”

439. Freemason, Title, Right.—Prior to 1879, the mother, wife, and other relatives of Coppers, who were Roman Catholics, were buried in the lot covered by the deed given in the last paragraph. Coppers, who was a Freemason, died in August, 1879, and his funeral services were held under the auspices of the Masons from an Episcopal church, as directed in his will. The rules and doctrines of the Church forbid the burial in consecrated ground of the body of one who was not a Roman Catholic or who was a member of the Masonic fraternity. The Church authorities refused to allow Coppers to be buried in the cemetery, and application was made by his relatives for a [pg 229] writ of mandamus to compel his interment therein, they having deposited the necessary money to pay all the expenses. The court held that the certificate delivered to Coppers was not a conveyance nor a grant and did not vest title to the land in him, and that the cemetery could not be compelled to execute and deliver to him an absolute conveyance of the lot. His only right under the certificate was the use of the lot for burial purposes subject to and in conformity with the established rules and by-laws of the corporation in so far as they were not in violation of any law. It is the tacit understanding, when a person applies for a burial lot in a cemetery of the Catholic Church, that he is either a Catholic and as such is eligible to be buried therein, or that he applies in behalf of those who are in communion with the Church.[777]

440. Lots, Fee.—If the cemetery association sells 400 lots to one man and makes a conveyance in fee thereof, it is bound thereby.[778]

441. Deed, Privilege, Heirs and Assigns.—No formal deed is necessary to confer exclusive right to the use of a cemetery lot for [pg 230] burial purposes.[779] And certificates of lots issued by a corporation convey no title to the land, as they are not in the form necessary to constitute a conveyance of land. Their only effect is to grant the privilege of interment so long as the ground continues to be used for the purposes of burial.[780] A deed of a cemetery lot “to him, his heirs, and assigns forever,” gives only an easement in the freehold, and does not give title to the soil, and is subject to changes made necessary by altered circumstances.[781]

442. Access, Purposes.—Title to a cemetery lot gives the right of access to it for the usual purposes, including putting up monuments.[782]

443. Monuments, Inscriptions, Drunkenness, Non-Baptized, Strangers.—The plaintiff obtained from the defendant a deed, which, among other things, contained the following conditions: “that such lot shall not be transferred without the consent of the trustees; shall be subject to the regulations made, or to be made, in the care and management of such cemetery by the trustees, who shall also have the right to prevent [pg 231] the erection of offensive and improper monuments or inscriptions thereon, and shall retain the right to enter any lot for the removal of anything objectionable; that no remains shall be deposited therein for hire; and that persons dying in drunkenness, duel, or by self-destruction, non-baptized, non-Catholic, or otherwise opposed to the Catholic Church, shall not be therein interred.” The plaintiff had buried his father and one of his children in the lot, and brought his wife's remains there for burial. Upon the arrival of the funeral, two small coffins of strangers, one of which bore the name “John McDonald,” which the grave-digger had taken up, were at the side of the grave. There was nothing to show how those bodies came to be buried there. The plaintiff brought suit for damages against the cemetery association. The court held that the cemetery association was liable and that the defense that it was a public charitable organization could not be sustained.[783]

444. Use, Forfeited.—When a deed is made of land for the use of a cemetery only, it will be forfeited by using it for a school.[784]

445. By-Laws, Member, Burial.—Where a by-law of a church association provides [pg 232] that any member who pays one dollar to have his name entered in the record shall be entitled to a burial lot, a member who had paid one dollar to the committee of the church before the adoption of such by-law but had ceased to be a member of the congregation, has no right to a burial lot.[785]