116 Tenn. 221 | Tenn. | 1905
delivered the opinion of the Court.
The defendant, the Mt. Olivet Cemetery Company, is a corporation organized under the laws of this State for the purpose of acquiring, opening up, and beautifying property for cemetery purposes, and acting under its charter it acquired a tract of land in the neighborhood of the city of Nashville, and divided the same into lots suitable for the interment of bodies. In the year 1851 ex Gov. Aaron V. Brown died leaving a will in which
Mrs. Cynthia II. Brown, at the time of her marriage to Gov. Brown, was a widow. By her first marrige she had two children. J. E. and Narcissa P. Saunders, who are made defendants to the present bill. These parties assuming, in the right of their mother, who' under the will of Gov. Brown was entitled to one-sixth of the estate, that they had a one-sixth interest in the burial lot as originally laid off, sold to the defendants Marshall and wife, one of these subdivisions, this being done with the consent of the trustees in charge
The chancellor dismissed the bill upon the ground that relief was asked with regard to property, or an interest in property, peculiar in its character and over which a court of equity could not exercise control; on appeal, however, the court of chancery appeals has set aside that decree and has granted the relief prayed for in so far as it enjoins the'Marshalls from, in any wise, exercising control over or ownership in this property. We are asked by the defendants to review this last decree.
As has been stated, at the time of the purchase of the original lot by the executor Dortch, the trustees of the cemetery instead of making a deed, simply issued a certificate showing that this purchase was for the benefit of the estate of Gov. Brown. Thus the legal title to the property was left in the corporation where it remains to this day. That it has been understood by all parties the corporation exercised a dominant control over this lot is indicated, by the fact that in the subdivision that was made of the original purchase, and of the sales from that subdivision by the children and grandchildren of
So it is that all the parties evidently regarded that property in a cemetery lot Avas peculiar in character, and lacked some, if not many, of the elements found in other property, real and personal. That such an interest is peculiar, we think is the result of, the holding of well-considered cases. In the petition of Emaline A. Waldron et al., a case decided by the supreme court of Rhode Island, in March, 1904, reported in 58 Atl., 458, 67 L. R. A., 118, 106 Am. St. Rep., 688, it was held that a residuary devise in general terms to a testator’s Avidow would not, as against his children, pass title to a burial lot upon which members of the testator’s family were buried. In an earlier case, that of Gardner v. Swan Point, 20 R. I., 646, 40 Atl., 871, 78 Am. St. Rep., 897, where a widoAV , claimed title to a burial lot as a residuary legatee, it was said by the court that in the cases “of churchyards and cemeteries it had been held that, though a deed may run to a grantee, his heirs and assignees, he takes only an easement or right of burial rather than an absolute title. So long as the land is used for burial purposes he cannot exercise the same right of ownership as in other real estate.” In Derby v. Derby, 4 R. I., 414, by the will of the testator the executor was empowered to sell all the real estate to pay pecuniary and residuary legacies, and the question arose whether he should sell a
In Roanoke Cemetery Co. v. Goodwin, 101 Va., 605, 44 S. E., 769, this peculiar nature of an interest in a cemetery lot and of the relation of a purchaser thereto are equally recognized. It was there held that the purchaser acquired no absolute interest or dominion over such lot, but merely a qualified and usufructuary right for the purposes to which the lots were devoted and for which they were set apart by the company; that their holding was in the nature of an easement with the exclusive right to bury in the lots subject to the general proprietorship and control of the association. To the same effect are
Other courts have declined to recognize the right of a lot holder in a cemetery even as rising to the dignity of an easement In Kincaid’s Appeal, 66 Pa., 411, 5 Am. Rep., 377; Page v. Symonds, 63 N. H., 17, 56 Am. Rep., 481; Partridge v. First Independent Church, 39 Md., 631, and Dwenger v. Geary, 113 Ind., 106, 14 N. E., 903, such a right is treated as something in the nature of a license — a mere right of burial.
A very extensive and learned note to the case of Waldron’s Petition, supra, will be found in 67 L. R. A. These cases and many others are collated and commented upon. The reason which controls, whether expressly stated or only by inference to be found in the opinions delivered by the various courts, is possibly as well expressed by the supreme court of Rhode Island in the case first referred to as elsewhere. In that case, as has been stated, it was held that a burial lot did not pass under a general residuary devise, but descended to the heirs as intestate property. Said the court: “It is a family burial lot. It is that fact alone which gives a. peculiar limitation to its tenure. The heir takes subject to all the conditions for which the ancestor held it. A sort of trust attaches to the land for the benefit of the family. Neither the widow nor the child can be excluded' from it for want of title, yet such a result might follow if the tenure was like that of other real estate.”
We are satisfied that these holdings are sound, and
We think that the complainants have a right to a decree setting aside the conveyance of the Sanders to Marshall and wife, and a perpetual injunction as against the latter. A decree will be entered in accordance with this opinion and in addition to what has been indicated above, it shall be adjudged that J. E. and Narcissa Saunders have no title or interest in the property.
The cost of the cause will be paid by the defendants.