368 
“While a burial lot is regarded as prop- 
erty, in which title may in most cases de- 
scend to heirs (Field vs. City of Provi- 
dence, 17 R. I. 803), it is evident that the 
tenure generally is not like that of ordi- 
nary real estate. We do not know what 
the charter provisions of the Swan Point 
Cemetery may be in regard to title of lots, 
but, in the cases of church-yards and ceme- 
teries it has been held that, though a deed 
may run to a grantee, his heirs and assigns, 
he takes only an easement or right of 
burial, rather than an absolute title. * * * 
So long as the land is used for burial pur- 
poses he cannot exercise the same rights 
of ownership as in other real estate. Thus 
in Thompson vs. Hickey, 59 How. Pr. 434, 
it was held that a burial lot could not be 
mortgaged.” 
In several of the states there are special 
statutes governing the question of control 
of burial lots, and, of course, those statutes 
are controlling against what has been said 
above. For instance, in the case of Capen 
vs. Leach, 182 Massachusetts Reports, 175, 
a suit by one of four heirs jointly inter- 
ested in a burial lot to restrain the others 
from interfering with a monument erected 
by her, the Supreme Judicial Court of Mas- 
sachusetts said : 
“Whether the cemetery is one the lots 
of which are governed by the statutory 
provisions now in force * * * does not 
appear. * * * If the cemetery is gov- 
erned by such laws, the possession, care 
and control of the lot was not in the plain- 
tiff alone, but was in common in the four 
heirs of whom she was one, and that 
statute provides the course to be followed 
in case the four do not agree as to the 
control of the lot. That course is a desig- 
nation by the proper officials as to which 
of the heirs shall represent the lot in de- 
fault of such a designation by the heirs 
themselves. If on the other hand the lot 
was not governed by the statute cited the 
plaintiff and the defendants are merely 
tenants in common. The placing upon the 
lot of a granite monument was an exclu- 
sive appropriation by the plaintiff of a part 
of the land to her own use which the de- 
fendants could treat as an ouster and they 
might remove the structure from the com- 
mon land.” 
The laws of Minnesota specially provide 
how lots shall descend on death of the 
owner, as follows : “To the surviving spouse 
of decedent. If there be no surviving hus- 
band or wife, to the eldest living son. If 
there is no living son, to the eldest living 
daughter. If there is no son or daughter, 
to the youngest brother of decedent. If 
there be no living brother, to the youngest 
sister. If there be no surviving spouse, 
son, daughter, brother, or sister of dece- 
dent, then to the association in trust for the 
uses of a burial lot for the decedent and 
such of his relatives as the trustees shall 
deem proper. But such association, or, 
with its consent, any person to whom such 
PARK AND CEMETERY. 
lot shall so descend, may grant and convey 
the same to any one of decedent’s sons, 
daughters, brothers, sisters or grandchil- 
dren, and such grantee shall thereafter be 
deemed the owner thereof.” 
Another case in point is that of Wright 
vs. Hollywood Cemetery, 112 Georgia Re- 
ports, 884, wherein the Supreme Court of 
Georgia decided that title to a lot passed, 
on the owner's death, to his heirs at law ; 
and that whoever had the right to bury the 
remains of an heir had the right to bury 
them in that lot. 
In an interesting case passed upon by the 
Rhode Island Supreme Court — Derby vs. 
Derby, 4 Rhode Island Reports, 414-r-it was 
decided that power given in a will to dis- 
pose of decedent’s property did not autho- 
rize the executor to sell a burial lot. The 
court said : 
“This lot is held under a charter to the 
cemetery corporation, and under that char- 
ter, all lands of the corporation are dedi- 
cated to burial purposes. This lot was pur- 
chased 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 be- 
lieve, without the most express direction. 
It is the more difficult in this case, as with- 
in it are deposited the remains of his 
former wife; and could he intend that 
those remains should be disturbed? He 
has devoted this lot to pious and charitable 
uses, as a place of burial for the members 
of his own family! Did he mean to re- 
voke it? It is a violation of feelings of a 
sacred nature, this idea of making mer- 
chandise of the repose of the dead.” 
Inheritance of Burial Lots. 
“If a person dies in New York making 
no mention of his burial lot in his will but 
wills all his real and personal estate to 
John Doe, does the lot go to John Doe 
under the will or to the heirs of the own- 
er? Does the lot pass under a general 
devise?” — S. A., N. Y. 
If the will, read as a whole, manifests 
an intention on the part of decedent to 
give his entire estate to a specified person, 
I am of, the opinion that his burial lot 
would pass to the devisee as “real prop- 
erty.” But in determining the question, 
consideration should be paid to the will as 
a whole and to surrounding circumstances. 
For instance, a will of all of testator’s prop- 
erty to strangers in trust for heirs should 
not be construed as passing title to the 
burial lot, in the absence of a clearly ex- 
pressed intention to that effect. But it is 
a fixed rule of law that a will should be 
construed, if it reasonably permits, as dis- 
posing of all of the testator’s property, 
since it is only natural that when one 
makes a will he should intend to leave 
none of his property to descend as intes- 
tate property. 
The rights of an owner of a burial lot 
fall within the definition of “real and per- 
sonal property” and a devise of all such 
property to a certain person should be in- 
terpreted as carrying title to the burial lot, 
although the courts would doubtless be 
more inclined to apply this rule in cases 
where the devisee is a relative of the tes- 
tator. A. L. H. Street. 
Cemeteries as Private Enterprises. 
The courts will not give effect to con- 
tracts looking to the making of private 
profit out of cemeteries, where the statutes 
of the state indicate a legislative policy to 
exclude cemeteries from the realm of busi- 
ness venture, holds the Oklahoma Supreme 
Court in a recent case, Street vs. Fair- 
lawn Cemetery Assn., 153 Pacific Reporter, 
638. 
The decision was handed down in a case 
where owners of land deeded it to a ceme- 
tery association at Oklahoma City under a 
contract whereby they were to share in the 
proceeds of burial lots sold out of the tract. 
But as will be seen from the following ex- 
tract of the opinion, the holding is based 
upon the peculiar language of the Okla- 
homa statues : 
“While the defendant association is a 
private corporation, yet the purposes for 
which its incorporation was authorized and 
the uses to which its property is dedicated 
by the law are largely public. These pub- 
lic characteristics of a cemetery association 
are recognized in every legislative enact- 
ment wfith reference thereto. Such an asso- 
ciation has power to take and hold real 
property ‘for the sole use and purpose of 
a burial ground.’ All its property and that 
of the individual lot owners in its ceme- 
tery is exempt from taxation, assessment, 
lien, attachment, levy and sale by execution, 
appropriation for streets and roads, etc., 
and, when its lots are acquired by individ- 
uals and the dead buried therein, they are 
forever inalienable. The association is 
impowered to make by-laws, to the end that 
all appliances and conveniences and ben- 
efits of a public and private cemetery may 
be obtained and secured !” 
The court cites another section of the 
Oklahoma laws which provides that the 
proceeds arising from the sale of lots, 
after deducting all expenses of purchasing, 
inclosing, laying out and improving the 
ground, and of erecting buildings, shall be 
exclusively used in protecting and improv- 
ing the cemetery and its appurtenances, and 
to paying the necessary expenses of the 
corporation, and “must not be appropriated 
to any purpose of profit to the corporation 
or its members.” 
Proceeding, the court says : “It is now, 
and has been at all times, the declared 
policy of the law in this jurisdiction that 
the affairs of a cemetery association shall 
not be conducted for the purpose of profit 
to the corporation or its members. Con- 
ceding the fact to be that the association 
in this case was at the time without means 
to purchase this land, which w'as regarded 
as necessary to its purposes, and that the 
contract entered into with plaintiffs afford- 
