525 
-PARK AND CEMETERY. 
COURT ON RIGHTS OF HEIRS TO CEMETERY LOT 
According to the Tennessee Su- 
preme Court in the case of Robertson 
et. al. vs. Mt. Olivet Cemetery Co. et. 
ah, where testator’s executors pur- 
chased a lot in a cemetery for the in- 
terment of testator and the members 
of the family, receiving a mere cer- 
tificate of purchase from the cemetery 
association for the benefit of the es- 
tate, the legal title remaining in the 
association, no title to the lot passed 
to the testator’s wife under his will, 
bequeathing to her a one-sixth in- 
terest in his estate, which could pass 
on her death to her children by a 
former husband. Judge C. J. Beard in 
rendering his decision, reviews the case 
as follows : The defendant, the Mt. 
Olivet Cemetery Co., is a corporation 
organized under the laws of this state 
for the purpose of acquiring, opening 
up, and beautifying property for ceme- 
tery purposes, and acting under its char- 
ter 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 he divided his 
estate between Cynthia H. Brown, his 
wife, and five children, four of whom 
were born to him by a prior marriage, 
the fifth and youngest being the issue of 
the marriage with his second wife, aft- 
erwards his widow. Subsequent to his 
death one Dortch, who had quali- 
fied as his executor purchased a lot in 
Mt. Olivet Cemetery, taking from its 
trustees a certificate of purchase indi- 
cating that it was for the benefit “of the 
estate of Aaron V. Brown.” Upon this 
lot were from time to time buried the 
bodies of Governor Brown and a num- 
ber of his children and grandchildren, 
who died at later dates, and also that 
of Cynthia H. Brown, his widow. A 
number of years prior to the filing of 
the present bill the heirs of Governor 
Brown, believing the lot, as originally 
laid off, unnecessarily large, with the 
consent of the trustees of the cemetery, 
subdivided it and made sales of certain 
of these subdivisions which were unoc- 
cupied by the bodies of the family to 
strangers in blood. 
Mrs. Cynthia H. Brown, at the time of 
her marriage to Governor Brown, was a 
widow. By her first marriage she had 
two children, J. E. and Narcissa P. 
Sanders, who are made defendants to 
the present bill. These parties assuming, 
in the right of their mother, who under 
the will of Governor 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 defend- 
ants, Marshall and wife, one of these 
subdivisions, this being done with the 
consent of the trustees in charge of the 
cemetery. These purchasers, claiming 
title by virtue of this sale, were prepar- 
ing to erect a vault on this lot when the 
present bill was filed by the complain- 
ants, who are the children and grand- 
children of Governor Brown, impeach- 
ing this sale and asking that the convey- 
ance from the two Sanders to Marshall 
and wife be held as a cloud upon their 
interest, and that the vendees be per- 
petually enjoined from interfering with 
this property. 
The chancellor dismissed the bill up- 
on 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, exer- 
cising control over or ownership in this 
property. We are asked by the defend- 
ants to reyiew this last decree. 
As has been stated, at the time of the 
purchase of the original lot by the execu- 
tor 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- 
ernor Brown. Thus the legal title to 
the property was left in the corporation 
where it remains to this day. Thus it 
has been understood by all parties the 
corporation exercised a dominant con- 
trol 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 Governor Brown, 
as also in the attempted sale of the San- 
ders to the Marshalls, its consent to 
such change of interest was deemed 
necessary and accordingly was obtained. 
So it is that all the parties evidently 
regarded that property in a cemetery lot 
was peculiar in character, and lacked 
some, if not many, of the elements 
found in other property, real and per- 
sonal. That such an interest is peculiar, 
we think is the result of the holding 
of well-considered cases. In the peti- 
tion of Emaline A. Waldron et al., a 
case decided by the Supreme Court of 
Rhode Island, in March, 1904, reported 
in 58 Atl. 453, 67 L. R. A. 118, 106 Am. 
St. Rep. 688, it was held that a resid- 
uary devise in general terms to a testa- 
tor’s widow 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 vs. Swan Point, 20 R. I. 
646, 40 Atl. 871, 78 Am. St. Rep. 897, 
where a widow claimed title to a burial 
lot as a residuary legatee, it was said by 
the court that in the cases “of church- 
yards 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 vs. 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 lot in the cemetery where 
the testator’s first wife was buried. The 
court said ; “This lot was purchased 
by the testator for a burial place for 
his family. That he should deliberately 
intend that it should be sold and go into 
the hands of strangers it is difficult to 
believe without the most express direc- 
tion. It is the more difficult in this 
case as within it are deposited the re- 
mains of his former wife, and could he 
intend that these remains should be dis- 
turbed? He had devoted this lot to 
pious and charitable use as a place of 
burial for members of his family. Did 
he mean to revoke it? It could not 
have been in the contemplation of the 
testator that this lot should be sold out 
of his family, nor could he have con- 
templated it as property in any such 
sense as to fall within the power given 
to the executor, and with an express 
direction to sell this particular lot we 
think we shall not be warranted in 
advising the executor to sell it.” 
In Roanoke Cemetery Co. vs. Good- 
win, 101 Va. 605, 44 S. E. 769, this pecu- 
liar 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 usu- 
fructory 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 asso- 
ciation. To the same effect are Hook 
vs. Joyce, 94 Ky. 450, 23 S. W. 651, 21 
L. R. A. 96; McWhirtcr vs. Newell, 200 
111. 583, 66 N. E. 345. 
Other courts have declined to recog- 
nize the right of a lot holder in a cem- 
