69 N.J. Eq. 636 | New York Court of Chancery | 1905
This is an application to strike out a bill under rule 213. The application is equivalent to a demurrer, and every pertinent fact alleged must be taken as true.
The case is this: The complainant is a lot owner in the cemetery of the Rahway Cemetery Company, and as such seeks to enjoin the company from making a gift of $200 in cash to the First Presbyterian Church of Rahway. The allegation is that the company owes, for notes outstanding, $1,443.54; for unpaid bills, $50.63, and on mortgage, $700; that the notes will soon become clue; that the company has in its treasury $247.31, and that it has not nor will it have sufficient funds to meet these obligations as they mature. It is also alleged that the care and maintenance pf the cemetery has, for some time past, been neglected; that the principal drives and roads are in extremely
Two. points are taken by the defendants—first, that complainant has no interest in the affairs of the cemetery; second, that the constituent members of the cemetery corporation are members of the church corporation, and that the proceeds of the lands may lawfully be appropriated to the church for its charitable uses.
The first point, viz., want of interest to complain, rests upon the premise that the cemetery company has given a deed conveying the fee-simple of the lot, the conclusion drawn being that complainant, having this separate interest, stands as a stranger to the company and its remaining lands, and is not in a position to' complain of its acts. This contention will require an examination of the status of the company and of the terms of the conveyance, which are not those of the ordinary bargain and sale deed.
The cemetery is not incorporated under the act relating to rural cemetery associations, but under the act to incorporate associations not for pecuniary profit (P. L. 1898 p. 422), an act not very well adapted to the object in view. This act, in its first section, provides that “any five or more persons who shall desire to associate themselves for any lawful purposes, oilier tfian for pecuniary profit" may make and file a certificate pursuant to its provisions.
In its second section it provides that this certificate may contain provisions prescribing the qualification of officers and members, and any other provision for the regulation of the business of the association, and any limitation or regulation of the powers -of the corporation not inconsistent with law. By section 3 the company is authorized to take and hold, by gift or purchase, real and personal property.
The certificate of the Rahway Cemetery Company declares that the object of the incorporation is to acquire by grant the property held by the First Presbyterian Church of Rahway, used by it for cemetery and burial purposes, and to maintain and use such property and any property it might thereafter acquire.
As under the act of 1898 the trustees are required to be elected by the members of the association, it would seem as if it had been intended that the members should be those persons only who are qualified to vote at the parish meetings of the church. Possibly this may have been the very reason why the association was not incorporated under the Eural Cemeteries act, for that act gives to the lot owners the privilege of electing the trustees (Gen. Stat. p. 352), and this the church may not have wished.
The situation would seem to be this: The trustees elected by the parish voters were, under the certificate of incorporation, a board entrusted with the duty, first, of acquiring the cemetery property from the church, and then, of maintaining and using it “for cemetery and burial purposes only.” They were prohibited, by the act of 1898—the law of their, being—from conducting the company^ affairs “for pecuniary profit.” Talcing these two fundamental provisions together, it would seem inevitably to follow that, as the members could not make for themselves a profit out of the sales of lots or other revenue of the cemetery, neither could they make a gift of their revenue to another and independent corporation.
The allegation of the bill is that the trustees propose to make a gift of money to the church while without funds to pay even that which they owe and while permitting the cemetery drives and roads to go uncared for. This is such a manifest breach of duty that the only question is whether the complainant is in a position to complain.
Now, what is the object of this cemetery company? That is stated in its certificate:
“The object ana purpose of the corporation is to maintain and use (‘the property acquired from the church’) and any property it may hereafter acquire * * * for cemetery and burial purposes only.”
“that certain plot of land in the cemetery of the said, corporation * * * laid down and designated on the map of said cemetery as lot No. 408 of burial plots * * * bounded north by Linden circle drive, east by Holly drive, south by lot No. 409, west by Rose walk, to have and to hold * * * for the interment of the dead and for the only and sole purpose and use of a burial ground forever.”
It is then provided that “the lots in said cemetery shall be indivisible” without the written consent of the board of managers, “nor shall any person sell the privilege of making interment to any other person whatever in any lot without the consent of the managers.” And the conveyance is “subject to such rules and regulations as the trustees thereof have or may adopt respecting the said cemetery and its management.” It will thus be perceived that the deed operates to restrict not merely the use of the lot sold, but of all the other lots remaining unsold. The remarks of Justice Blackburn, in Queen v. Abney Park Cemetery Co., L. R. & Q. B. 519, seem precisely applicable. “The real state of the case appears to be that the company has granted the legal estate upon certain trusts and the purchasers
I may add that I have examined the cases cited by counsel and such others as I .could find. They lend but little assistance, as each was decided on a state of facts differing materially from the facts of this case. I may, however, say that the reasoning in Close v. Glenwood Cemetery, 107 U. S. 466, and New York Bay Cemetery Co. v. Buckmaster, 49 N. J. Eq. (4 Dick.) 440, goes to support the conclusion reached.
The other point made by counsel is substantially covered by what has been said. The proposition that, inasmuch as the members of the cemetery company are members of the church, the proceeds of the sale of lots may bo appropriated to the church, is untenable. While the membership of each organization may be to some extent identical, the organizations them