Packard v. Old Colony Railroad
46 N.E. 433
Mass.
1897
Check Treatment
Allen, J.

The petitioners contend that the deed by their ancestor was governed by the statute of uses, and that there was no legally existing cemetery corporation, and therefore the *96deed was ineffectual for want of an existing cestui que use; or, if otherwise, that at any rate it conveyed no more than a life estate, leaving a reversion in the grantor’s heirs.

The deed on its face shows a clear intention that the estate granted should not be limited to the lives of the three persons named as grantees. The purpose was that the land granted should be used for burial purposes by the corporation called the “ Village Cemetery.” Though the word “ heirs ” is not found in the habendum, it is recited that the granted premises are to be held, “ in behalf of the said corporation, to their use and behoof forever.” In the covenant against encumbrances, a provision is inserted, “ except that the ground shall never be used for other purposes than as a cemetery.” In the granting part of the deed it is also stated that two acres are the free and unqualified gift of the grantor.

It is well settled that deeds are to be so construed as to give effect to them according to the intention of the parties where that is possible; and a conveyance may always be construed to be of that kind or species which may be necessary in order to vest the title according to that intention, if such interpretation is not repugnant to the terms of the grant. Jamaica Pond Aqueduct v. Chandler, 9 Allen, 159, 167. Chenery v. Stevens, 97 Mass. 77, 86. Carr v. Richardson, 157 Mass. 576. Leonard v. Southworth, 164 Mass. 52. Crocker’s Notes on Common Forms, 2. It being plain that this deed was intended to be for the benefit and use of the Village Cemetery corporation, it is to be construed as a deed in trust for that corporation. No particular words are required to create a trust. The absence of the words “ in trust,” or “ trustees,” does not negative a trust. 2 Washb. Real Prop. (5th ed.) 547. Lewin on Trusts, (7th ed.) 98,118. And as the purposes of the trust require a legal estate in the trustees for a period beyond their own lives, they will take a fee though no words of limitation to heirs were used. Cleveland v. Hallett, 6 Cush. 403. Easterbrooks v. Tillinghast, 5 Gray, 17. Packard v. Marshall, 138 Mass. 301. Stanley v. Colt, 5 Wall. 119, 168. 2 Washb. Real Prop. (5th ed.) 537.

The petitioners, however, contend that the Village Cemetery was never legally organized as a corporation, and that therefore the deed was ineffectual to convey any title. There *97can, however, be no doubt that the Village Cemetery was a cor-dc facto, and as the petitioners’ grantor acted on the assumption that it was a corporation, and so described it, and received money which probably came from its funds as the consideration of the deed, it is at least doubtful if it is now open to the petitioners to deny the due and legal organization of the Village Cemetery as a corporation. But it is not necessary to rest upon this ground, as there is sufficient evidence that it was legally organized.

The chief objection to the regularity of its organization rests on the ground that the records do not show in express terms that ten persons were present at the first meeting. By St. 1841, c. 114, § 1, under which the action was had, “ Any ten or more persons may organize as a corporation for the purpose of procuring, establishing, and preparing a cemetery or burial place for the dead, in the same manner that religious societies are authorized to organize by the provisions of the twentieth chapter of the Revised Statutes.” Section 2 provides that, “ when such persons are organized as aforesaid, they shall become a corporation,” etc. Referring now to the Revised Statutes, c. 20, we find the following provisions:

“ Sect. 26. Any parish, which, from the want of officers, or any other cause, may be unable to assemble in the usual manner, and any religious society that is not incorporated, provided they contain respectively ten or more qualified voters, may organize themselves as a corporation, in the manner and for the purposes expressed in the following sections.

“Sect. 27. Any justice of the peace for the county in which such parish or religious society may be, upon application in writing by any five or more of the qualified voters thereof, may issue his warrant for calling a meeting of the same.

“ Sect. 28. The warrant shall state the objects of the meeting, and shall be directed to some one of the applicants therefor, requiring him to warn the qualified voters of the parish or society to meet at such time and place as shall be appointed in the warrant; and upon due return thereof the same justice, or any other justice of the peace for the county, may preside at such meeting, for the choice and qualification of a clerk, who shall enter at large upon the records of the parish or society the pro*98ceedings had in the organization thereof; and the parish or society may thereupon proceed to choose a moderator, and to do all such other things as parishes are by law authorized to do at their annual meetings. . . .

“ Sect. 29. Every parish and religious society, organized as provided in the three preceding sections, shall become a corporation.”

It will be seen that there is no provision in the statutes requiring the presence of any particular number of persons at the first meeting. Eleven persons signed the application, and thus expressed their wish and intention to be members of the corporation. This was, a proceeding analogous to the signing of the articles of agreement, which was deemed essential in the case mostly relied on by the petitioners. Utley v. Union Tool Co. 11 Gray, 139. Having done this, it was not necessary that all should attend the first meeting.

Moreover, even if it were necessary for ten to be present, there would be a presumption that this requirement had been •complied with. The presumption of regularity extends to the proceedings in the organization of corporations. In Narragansett Bank v. Atlantic Silk Co. 3 Met. 282, 287, it was said: “ The maxim of law is, that all things shall be presumed to have been rightly and correctly done, until the contrary is proved. 'This maxim is stated and explained, and many instances given ■of its application to corporations, and to acts and doings of their •members, officers, and agents, in Bank of United States v. Dandridge, 12 Wheat. 64, 70. As the corporation could not proceed lawfully until duly organized, and as they did proceed to act as a corporation, this presumption has its effect.” This doctrine is often applied, and it is to be assumed that ten persons were present at the first meeting, if that number was necessary. Wallace v. First Parish in Townsend, 109 Mass. 263. Platt v. Grover, 136 Mass. 115. Commonwealth v. Carr, 143 Mass. 84. Commonwealth v. Woelper, 3 S. & R. 29. Grays v. Lynchburg Salem Turnpike Co. 4 Rand. 578. Lauderdale Peerage, 10 App. Cas. 692.

The petitioners also contend that, if any title passed by the deed, the corporation has lapsed, and upon such lapse mere possession in the petitioners is sufficient, — meaning, we suppose, *99sufficient to show title in them. No authority is cited in support of this proposition, and we are aware of none which supports it. The case does not fall within the doctrine that when the purposes of a trust have failed, or have been completely performed, the trustees then hold the estate for the benefit of the heirs at law, as a resulting trust, and are answerable to them for it upon proper proceedings. Packard v. Marshall, 138 Mass. 301. Easterbrooks v. Tillinghast, 5 Gray, 17. The purposes of this trust have not failed, and have not been completely performed. The records show that deeds of twenty-nine burial lots were given from 1849 to 1854, interments were made, and the land had not ceased to be used as a cemetery. The corporation was not dissolved by the omission to choose officers, and to hold meetings; nor would the title to the land revest in the original grantor, without some due proceedings had for that purpose. Boston Glass Manufactory v. Langdon, 24 Pick. 49. Heard v. Talbot, 7 Gray, 113, 119. Briggs v. Cape Cod Ship Canal Co. 137 Mass. 71. The trustees were the proper parties to bring this petition. Davis v. Charles River Branch Railroad, 11 Cush. 506. Howe v. Ray, 110 Mass. 298.

The records of the corporation were competent evidence. King v. Little, 1 Cush. 436. This indeed is not now controverted.

In the recent case of Hopkins v. Grimshaw, 165 U. S. 342, which bears a resemblance to the present case in some of its aspects, a resulting trust in favor of the grantor and his heirs was declared to exist. But in that case the society which for a time maintained the burial ground was not incorporated, and it was practically dissolved and extinct, and the land had ceased to be used for burial purposes, the bodies all having been ex-burned and removed to other cemeteries.

Petition dismissed.