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The People ex rel. Coppers agt. Trustees of St. Patrick's Cathedral.

objects and purposes for which the defendants held and owned the lands known as “ Calvary Cemetery," and the language of the instrument, it is reasonably clear that the writing was intended to confer not merely a use of, or easement in, the land, for the purpose of burial, but to convey the ownership of the soil, not for any and every use, but for the sole and only one of burying the dead. If the right intended to be conferred upon the deceased was simply an easement, the paper should so have declared, which it does not do; but, on the contrary, the seventy-five dollars paid is stated to be the full “purchase-money of a plot of ground”- i. e., of the land itself. If, then, the words used are limited by the surroundings, which is lessening their legal significance as much as any known rule of law or equity will admit, the defendants are in the position of parties who have conveyed (for that which they are legally bound to do must be regarded as done) to Denis Coppers, his heirs and assigns, the title of the land, to be used by him and them for the purpose of burying their dead. If a conveyance in that form had been executed, what would have been the rights of the parties? To the answer of this question the discussion will now be directed.

In the Matter of the Brick Presbyterian Church (3 Edward's Ch. Rep., 155), the exact question was before the court. The corporation had, many years ago, executed sundry conveyances, and also leases for 999 years of certain pieces of ground in the cemetery belonging to it, for the purpose of constructing vaults to contain dead bodies, and these conveyances were construed “ to sell and dispose of the land, and not to grant a mere temporary use or privilege to construct vaults in the land, with a reserve of the title to the church." It was further held to be

“ base fee” (page 169), because the uses and objects for which it was to be held were limited (See, also, 4 Bradford, 503, etc., the opinion of Mr. Samuel B. Ruggles). If one of the owners of ground held for a vault had died, and his relatives had sought to place his body in the vault which he had constructed, would it have


The People ex rel. Coppers agt. Trustees of St. Patrick's Cathedral.

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 Presbyterian, or for the reason that he was a member of the masonic or any other order ? Manifestly not, for the corporation had parted with all control over the property, except that which the grant itself provided, or something growing out of the nature and objects thereof. If burial was to be limited to a certain class of persons, the conveyance should so have declared. And what is true and sound in the supposed case is equally so in these under consideration. The defendants are to be regarded as in the position of grantors of a fee of land, to be used and enjoyed, however, by the purchaser, his heirs and assigns, for burial purposes only. If his rights were to be in anywise limited, such limitation should appear in the instrument itself, and not so appearing, no dogma or decree of a church, however right or proper in itself it may be, or however capable of being enforced, if the power and right be properly reserved, can be interposed to prevent the cherished and natural wish of the deceased to have his mortal remains deposited by the side of those of his mother, from being fulfilled.

Nothing inconsistent with the doctrine which has been enunciated was held in Windt agt. German Reformed Church (4 Sandford, chap. 471). The vice-chancellor, it is true, did decide that mere burial and the payment of charges therefor gave no title to the land, but he also held (page 474), “when vaults or burying lots have been conveyed by religious corporations, rights of property are conferred upon the purchasers. This was the case with the corporation of the Brick Presbyterian Church (3 Edw. Ch. R., 155). The right is like that to any other real estate, and it is as perfect without sepulture as it is when the grantee has used it for that purpose.”

There is no similarity, it seems to me, between a conveyance of a pew in a church and that of a plot of ground in a

The People ex rel. Coppers agt. Trustees of St. Patrick's Cathedral.

cemetery, although a supposed one was urged upon the argument. The former conveys an interest in a structure only, and although the building in which the sitting is located is, whilst it stands, a part of the realty, yet no actual land is granted. As the thing itself, of which the right to occupy a part is given, is perishable, that given · cannot forever be enjoyed, and on account of that fact, and the necessity of alterations from time to time in the edifice, according to the needs of the occupants, which considerations are obvious to the minds of the contracting parties, there must be certain rights reserved to the corporate body owning the fee, which the law has long recognized and sustained. A deed of a plot of land in a bury ing ground, however, conveys that which is capable of being held so long as the earth, of which it is a part, shall endure, and hence there can be no rights reserved the reservation of which, though not expressed, is implied in the former instance from the nature of the thing granted. But though the distinction pointed out is unsound, and though the argument of the defendant's counsel endeavoring to maintain the supposed similarity of the two cases be sound, it would still be a novel doctrine to enunciate, that the owner of a church pew, whilst the edifice is still standing and unchanged, could be excluded from its use, because his faith was not entirely in accord with that of the denomination to which the organization occupying the building belonged; and, as it also seems to me, it is even more startling to hold that the body of the human being, whose money, when he or she was living, has purchased a plot of ground for sepulture, can be denied a final resting place therein, for the reason that his or her religious belief was not exactly similar to that of those who conveyed an absolute right of burial without any condition or restraint expressed in the instrument grant

ing it.

It is objected, however, on the part of the defendants that, by their act of incorporation (chap. 239 of Laws of 1817, sec. 1), there could be no conveyance of an interest in the

The People ex rel. Coppers agt. Trustees of St. Patrick's Cathedral.

land without the permission of the court, for it is therein declared "that nothing herein contained shall authorize the said trustees to sell the real estate unto the said cathedral or congregation belonging, without the concurrence of the chancellor, to be first had and obtained in the manner required by the laws.” It is, at least, somewhat doubtful whether parties, who have assumed to make and execute an apparently valid contract for the sale of an interest in land, with the unrestored full purchase-price in their pockets, and possession given to the grantee, are in a position to prevent the use of the property in conformity with its manifest object upon such a ground, and whether or not, in the absence of proof, such consent as the law requires will not be presumed (Bowen and McNamee agt. Trustees of the Irish Presbyteriun Congregation in the City of New York, 6 Bosworth, 245.) Waiving, however, any further discussion of this suggestion, it is apparent that the permission of the chancellor was only required to such sales as would alienate the property from the uses to which it was to be held, and not to such as were designed to carry out the objects and purposes of the original grant to the defendants. By the act of 1864 (chapter 87) the lands known as “ Calvary Cemetery” are held, and the defendants are empowered to "use” them “ for cemetery purposes.” The conveyance of family plots for such object is a part, and a substantial part, of the manner in which cemeteries are used by corporations created to hold them, and an approval of each sale for that purpose would be unnecessary, and is not within the purview of the statute. And even though this objection would be valid to prevent a transfer of any ownership of the land, it would not prevent the writing given from conferring a valid right of burial, which right, for all the purposes of the present inquiry, must be ample to afford the relief sought, unless for other reasons, yet to be considered, it must be refused.

It is true, as was urged by the learned counsel for the defendants, that every person who dealt with them was bound

The People ex rel. Coppers agt. Trustees of St. Patrick's Cathedral.

to know that they formed a corporation attached to the Roman Catholic Church, and that they had power to make lawful by-laws; but, under no rule of law known to me, as has already been intimated, can it be presumed that a party who deals with a corporate body in matters of contract, and pays his money for property, or rights, which it assumes to convey, without restriction, is bound to know of articles of faith or private regulations of the corporate body which will make the purchase valueless and the written grant of no avail. Such a doctrine would unsettle well-established principles, and especially that one which declares that a 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 are justified, by the law of the Roman Catholic Church, in prohibiting the burial of the body of the late Denis Coppers, in the lot purchased by him, upon the ground that he was a non-Catholic or a mason. If the law of that denomination does justify such action, it is held to be inoperative in this instance, by reason of the written contract which has been executed, and, therefore, without discussing the doctrines of the church, some technical objections will next be considered.

It was also strenuously argued that the relators and plaintiffs have no standing to maintain either the action or proceeding, for the reason that they have no title to the burial plot, and are not the next of kin. Are these objections sound? Denis Coppers died on the 14th day of August, 1879. Arrangements were made to open the grave on the sixteenth of the same month, and the funeral was on the seventeenth (Sunday). By his will he had directed the interment of his body (to repeat his own words) “ in Calvary cemetery, New York, with or near the remains of my mother, and in the burial lot of ground now owned by me there."

The burial as directed by will was forbidden by the defendants on said seventeenth day of August, but permission to place the body in the receiving vault was given. On the

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