Love v. Robinson , 219 Pa. 469 ( 1908 )

Opinion by

Mr. Justice Mestrezat,

The single question in this case is, as stated by the learned judge below, whether or not a cemetery lot is a subject of partition. In the opinion filed by the. court it has fully found the facts, and clearly demonstrated that reason and precedent alike deny the right to such partition. The decree entered below is affirmed on the opinion.

We think it clear that the title held to the cemetery lot in question by the plaintiff and the defendants, who took it by inheritance from Mary Ann Robinson, deceased, is not a subject of partition. Aside from any question of decency or sentiment, which the very idea of partition offends, the charter of the cemetery and the deed made to Mary Ann Robinson, the purchaser of the lot, and the regulations, which are a part of and included in the deed, show conclusively that the heirs of the purchaser of a lot cannot compel a partition of it. The charter act of the cemetery authorized it to sell burial lots, and provided that they should not be used for any other purpose, and “ shall be free from seizure, levy or sale under or by virtue of any execution against any grantee or grantees of said association, for such purpose.” The deed conveying the lot to the purchaser provided that it should be held “ subject to the rules, conditions and limitations, and with the privileges specified in the rules and regulations hereto annexed, and such others as may hereafter be adopted.” Among the rules and regulations, subject to which the purchaser held the lot, are the following : (a) “ The heirs at law have jointly a right to the disposal and use of the property; neither of them alone has the right to the disposal of it.” (b) “ The wife of the intestate has the same -interest in the lot as she has in other real estate of the intestate ; but her interest, so far as the cemetery is concerned, is nominal; she can neither dispose of it or order interments to be made therein.”

It will be observed, therefore, that the title of the purchaser of a burial lot in this cemetery is not an absolute, fee .simple title. He acquires the lot simply for burial purposes, and therein he and the members of his family may be buried. The regulations forbid the burial of any other person in the lot, except upon special permission in writing obtained at the office of the corporation. It is true that the owner may dispose of it by will, but the devisee will hold it subject to the rules and regulations of the cemetery. The parties to this litigation, however, do not hold the lot under a devise from the purchaser, but by inheritance, and the rules and regulations, as we have seen, further limit the rights of such heirs in the property. The plaintiff is the sister and the defendants are the brothers of the purchaser of the lot in question, and they inherited the lot from her. The rule provides that they may jointly dispose of and use the lot, but explicitly says that “ neither of them alone has the right to the disposal of it.” The lot is held subject to this rule, and hence it is apparent that it will require joint action on their part either to use it for burial purposes or to sell or otherwise dispose of it. The widow of an intestate may be buried in a lot of her deceased husband, but she cannot dispose of it or authorize interments to be made in it. The purchaser of the lot took out an endowment certificate as authorized by the Act of March 6, 1860, P. L. 108, and by the income from the fund has provided for the perpetual care of the lot as a place of burial for her dead.

It appears, therefore, that the plaintiff and the defendants in this action hold the lot in question simply for burial purposes, and do not have a fee simple title* to it. The rights in the lot are limited and circumscribed to such an extent, as appears by the title, as to make it manifest that the property cannot be divided or sold under proceedings in partition at the instance of either of the parties. A partition of the lot would defeat the purpose for which it was conveyed to the purchaser, and would be in disregard of the rules and regulations subject to which it was conveyed to her. To permit either party to institute and carry to a conclusion partition proceedings would in effect be permitting him to dispose of the property without the consent of the other interested parties, in direct violation of one of the express rules of the cemetery. Such a proceeding would result in a sale of the property or a division, and either would violate a condition upon which the purchaser acquired the property and under which the parties to this litigation hold it. This controversy clearly discloses an imperative reason for the regulations and rules under which lots in this cemetery are held, and the court should enforce these rules and regulations, not only in the interest of the cemetery,.but to prevent such unseemly, uncalled-for and indecent contests over the ground in which lie the • ashes of the dead. Here the plaintiff, against the protests of the defendants, her brothers, is invoking the aid of the law to compel a division or sale of the property in which lie buried her father, her mother, her brothers, her sister. Fortunately the law erects a barrier which prevents her from desecrating the tombs of her dead.

"When these parties were here before on a bill for the partition of part of the real estate described in this bill, Love v. Robinson, 213 Pa. 480, the delay in the division of the property between the interested parties was pointed out, and it was suggested that the court should facilitate a speedy disposition of the then pending bills for partition. Before the present bill was filed one of the defendants in this bill had filed an amended bill for the partition of all the property owned by the parties, except the cemetery lot, and answers had been filed by the defendants. The cause was at issue. The opinion of the court below in this case shows that the failure to partition the property on the former bill was because the plaintiff in this suit declined to have the question whether the cemetery lot is the subject of partition determined on that bill. Under these circumstances we are not inclined to re-' verse the court below because it did not make partition in this proceeding of the real estate held in common by the parties. Either party can speed the pending bill, filed at No. 1,141, December Term, 1903, and the court below should permit no further delay in disposing of it.

The decree of the court below is affirmed at the costs of the appellant.