110 
lot holders; hut such rules must be rea- 
sonablc, equal iu operation, and uniform in 
their application to all lot owners in the 
cemetery. A rule which would confer a 
right upon one lot owner in regard to the 
improvement of his propert}', and deny the 
same right to another lot owner, the man- 
agers of a cemetery have no power to 
make. * * A regulation requiring 
plans and specifications to be submitted to 
the board of managers for approval is en- 
tirely a different thing from a rule pro- 
hibiting the erection of a vault. As said 
before, in the absence of a general rule 
prohibiting the erection of vaults by all, 
the board of managers had no power to 
establish a rule which would govern this 
particular case. 
Right to Remove Graves. 
.\ decision very recently announced by 
the Supreme Court of Appeals for Vir- 
ginia is of historical as well as of legal 
interest, in that it upholds the right of the 
Alasonic lodge of which George Washing- 
ton was a member to remove bodies from 
the lodge burial plot for the purpose of 
erecting the George Washington Memorial 
Temple at Fredericksburg. (Grinnan vs. 
Fredericksburg Lodge No. 4, A. F. & A. 
i\r., 88 Southeastern Reporter, 79.) 
In 1784 a half-acre plot was conveyed 
to trustees of the lodge for lodge purposes 
and it became a burial place for deceased 
members and their families, although not 
formally dedicated as a cemetery. 
Encouraged by IMasons throughout the 
country, the local lodge has undertaken the 
erection of a memorial to the "Father of 
His Country," to be maintained on part of 
the plot in question. Accordingly, a reso- 
lution was adopted looking toward the re- 
moval of some of the graves to other places 
in the same ground, ‘'marking the new 
graves with the stones and monuments 
which now mark the old. All of the 
above labor will be done * * * with 
due regard for the sanctity of the dead, 
and due regard for the wishes of the liv- 
ing, so far as not incompatible with the 
plan above outlined. Relatives or friends 
of the deceased persons may, if they so 
desire, have the remains * * * removed 
and reinterred in that portion of the cem- 
etery to be set apart for this purpose, and 
the lodge will pay the reasonable expenses 
of such removal and reinterment,” The 
resolution further recites that relatives have 
permitted the graves to remain in a neg- 
lected condition. 
On adoption of this resolution plaintiffs 
brought suit to enjoin disturbance of the 
remains of their relatives interred in the 
cemetery. The suit was dismissed and 
plaintiffs appealed, but without success, the 
Supreme Court of Appeals saying; 
"There is nothing in our statute law 
* * * showing that the policy of this 
commonwealth is averse to the removal of 
PARK AN D _ CEMETERY. 
graves in a reverent and proper manner 
under all circumstances. There can, how- 
ever, be no question of the power of a 
court of equity to deal with a case like 
the present, notwithstanding the absence of 
legislation on the subject, and to authorize, 
in its sound judicial discretion, the re- 
moval of graves or cemeteries in a proper 
case, after due consideration of all the 
facts and with due regard to the rights and 
feelings of all concerned. 
"The courts are much divided as to the 
character of the estate one may have in a 
burial lot in a cemetery. It is certain that 
it is not a fee [absolute title]. The weight 
of authority is, and we think the better 
view, that it is a mere privilege or license 
to make interments in the lot exclusively 
of others as long as the burying ground 
or cemetery remains as such. * * * ‘But 
if in the course of time it should become 
necessary to vacate the ground as a bury- 
ing ground, all that he [a lot owner] could 
claim would be that he should have due 
notice and the opportunity afforded to him 
of removing the bodies and monuments to 
some other place of his own selection, or 
that on his failing to do so such removal 
should be made by others.’ * * * 
‘‘The chief objection of the complainants 
is that the removal of the graves of their 
relatives from one part of this small cem- 
etery to another is an unwarranted injury 
to their sentiments and feelings. We are 
of the opinion that, upon consideration of 
all the facts, the removal proposed in this 
case would, instead of desecratin.g the se- 
pulcher of complainant’s dead, rather tend 
to preserve and beautify their resting place. 
* * * WT are of the opinion that the 
desecration of the graves in which com- 
plaints are interested is in the neglected 
and unsightly spot where they repose, and 
not in their reverent and careful removal 
to another part of the same cemetery, 
where their surroundings will be beautiful 
and cared for indefinitely. Every removal 
of graves is not a desecration : on the con- 
trary, such removal is often demanded by 
the highest considerations of duty and re- 
spect for the memory of the dead.” 
The court approves the following lan- 
guage of the South Carolina court in a 
similar case : 
"In this comparatively new country the 
dead have often been buried in very un- 
suitable places, and removals have often 
taken place in the exercise of the most 
tendei sentiment, in view of the future for- 
getfulness and disregard of the old neigh- 
borhood graveyards as the country is 
changed and developed. * * * So far, 
therefore, from the proposition of the 
church to sell the property and remove 
the dead to the city cemetery indicating 
any disregard of the sacredness of the as- 
sociation, we think, if carried out, it will 
promote, in the highest degree, the very 
high purpose which those who object wish 
to conserve.” 
Illegal Payment from Lot Sales. 
The fact that it proves to have been be- 
yond the legal powers of a cemetery asso- 
ciation to accept a deed of land to be used 
for burial purposes on condition that pay- 
ment be made to the grantor by paying 
him semi-annually one-tenth of the proceeds 
of lot sales, etc., does not deprive a court 
of equity of the power and duty to make 
fair provision to reimburse the grantor to 
the reasonable value of the land conveyed 
to the association, according to a decision 
of the New Jersey Court of Errors and 
Appeals lately handed down in the case of 
Bliss vs. Linden Cemetery Association, 95 
Atlantic Reports, 1001. 
One Smith acquired a tract of land in 
Union County, N. J., and conveyed it to 
defendant association on condition that 
9,000 shares of the association's stock be 
delivered to him, and that he be paid one- 
tenth of the proceeds of lot sales, etc. 
In litigation which arose under this 
deed, the provision for payment of a share 
of the proceeds was declared to be void on 
the ground that it was beyond the corpo- 
rate power of the association to agree to 
make such payment. On appeal, the Court 
of Errors and Appeal says : 
"The Court of Chancery properly decided 
that the agreement to pay perpetually a 
percentage of the price obtained for each 
of its lots was one that an association in- 
corporated under the general cemetery act 
could not lawfully make. * * * The 
decree appealed from is that the deed of 
conveyance be reformed by striking out the 
covenant. This is to say, that a grantee 
who has obtained a conveyance of land by 
agreeing to pay therefor in a particular 
manner which is beyond his legal capacity 
may keep the land without paying for it at 
all. This, of course, cannot be so. Nor- 
mally the remedy would be the rescission 
of the contract, notwithstanding the con- 
veyance, the purchaser thereby being ab- 
solved from its illicit covenant, and the 
vendor having his land restored to him. If 
for valid reasons this cannot be done, it 
still furnishes the criterion by which the 
rights and equities of the parties are to be 
worked out. In the present case this nor- 
mal remedy cannot be applied because of 
the burial uses to which the land has been 
put with the acquiescence of the grantor. 
* * * Of such deed an essential fea- 
ture was the payment of a part of the 
consideration in a particular way, and if 
that way is obnoxious to the statute law, 
some other way must be found by' which 
the contract of the parties as expressed in 
the deed shall as nearly as possible be car- 
ried out. Any objection b}^ the complain- 
ant to this course is met by the most fun- 
damental of all the maxims: ‘He who 
seeks equity must do equity.’ 
