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Corin v. Glenwood Cemetery

COURT OF CHANCERY OF NEW JERSEY
May 15, 1908
69 A. 1083 (Ch. Div. 1908)

Opinion

05-15-1908

CORIN v. GLENWOOD CEMETERY.

Mr. Cosey, for complainant. Mr. Slocum, for defendant.


Suit by William J. Corin against the Glenwood Cemetery. Heard on bill, answer, and proof.

Mr. Cosey, for complainant. Mr. Slocum, for defendant.

STEVENS, V. C. On July 26, 1905, the complainant applied to the sexton in charge of the Glenwood Cemetery for a lot. He had just lost his infant child, and wanted to bury it. The sexton showed him a plan of the lots, and the complainant selected one. The complainant paid $10 on account of the price and $3 for opening the grave, and the sexton gave him the following receipt: "Long Branch, N. J., July 26, 1905. Received of Mr. Wm. J. Corin the sum of $10 on lot No. 65, section No. 4; also $3 for opening grave of child. Glenwood Cemetery, per Venable." The child was within a day or two thereafter buried there. When the complainant tendered another installment of the purchase money to the secretary, De Nyse, the person to whom he was directed to pay it, it was refused, on the ground that complainant was a colored person, and one of the by-laws of the company provided that "no person of African descent" should be eligible to become a lot holder or member. The defendant failed in its proof that complainant was of African descent. It failed to show by competent evidence that the complainant was of colored descent—quite a different thing. On the witness stand he appeared to be no darker than many residents in Southern Europe, or Cuba, or Mexico, and there was no proof that either of his parents was colored.

The defense made by the answer is that the written receipt does not satisfy the statute of frauds, and that, if it does, the sexton had no authority to give it. It is true that it does not satisfy the statute of frauds; but, inasmuch as it is admitted by the witnesses on both sides that there was a complete verbal agreement, followed by what, I think, must be regarded as part performance, the complainant having been let into possession and his child actually buried in the lot selected, the fact that the writing is imperfect is not fatal. There is a conflict in the testimony over the price. Complainant says it was $40; Venable, the sexton, $45. The price fixed by the by-laws is $45. I must assume that there was a concluded agreement, for both parties say so. I think the memory of defendant's witness is more to be relied upon; for he is supported by the by-law and by the plan of lots. If complainant is willing to pay $45, he ought not to be defeated on this ground.

It is said, however, that the sexton had no authority to make the agreement. The proof is that the sexton had no express authority to sell, but that he was accustomed to do so in the case of a "hurry call," and to give receipts like the present. Sales under such circumstances were recognized by the company. In the three years that he had been employed there he had made no less than 12 or 15 of them, and they had all been ratified. There is no doubt that this one would have been, had it not been that the company's officers wished to repudiate it on racial grounds. Venable says that when he reported this particular sale, five or six days after it was made, the secretary told him that hedid not want complainant located there, as the rules of the company were against it; that the cemetery was reserved for white families only. In 1884 the Legislature passed an act making it a criminal offense for a cemetery company to refuse to permit the burial of a deceased person because of his color. The argument here is that this act is not relevant to the present situation, because, while burial may not be refused to colored people, proof that in the case of white persons, where there was a "hurry call," the sexton had implied authority to give receipts and let purchasers into possession, is not proof that he had such authority in the case of colored persons; the by-laws containing an express prohibition against selling to them. But, as has been shown, the by-laws do not mention colored persons. They mention persons of African descent. If this expression means anything, it includes, necessarily, the South African Boers, more remotely of Dutch descent, and many Algerians, more remotely of French descent. Such descent would in any case have to be proved. It could not be presumed. As there is no proof that complainant's ancestors came from Africa, there is nothing in the by-laws that would rebut the implication of authority to make an agreement with him. The case as it stands does not call for a decision whether a refusal to sell a lot is the same thing as a refusal to permit a burial.

There is possibly another view that may be taken of the case. The disposition of dead bodies is, in some cases, under the control of the Court of Chancery. Toppin v. Moriarty, 59 N. J. Eq. 115, 44 Atl. 469; Smith v. Shepherd, 64 N. J. Eq. 401, 54 Atl. 800. Ground devoted to the burial of the dead was once deemed to be devoted to a pious use (Gilbert v. Buzzard, 3 Phillimore's Rep. 348; In re Brick Presbyterian Church, 3 Edw. Ch. [N. Y.] 169), and is now in this state held to be subject to a charitable use (Newark v. Stockton, 44 N. J. Eq. 182, 14 Atl. 630). It is the use, and not the persons who administer it, that affords the test of a charity. The question may arise whether there is anything in the cemetery act which takes a cemetery company out of the class of charitable corporations (they being apparently exempted from taxation on the ground that they are charities—Hoboken v. North Bergen, 43 N. J. Law, 148; Flower Hill Cem. v. North Bergen, 68 N. J. Law, 488, 53 Atl. 293), and whether the superintending power of this court, assuming want of authority in the sexton to conclude the sale, may not, under the circumstances, be exerted to restrain the defendant from removing the body, if complainant be willing to pay the price of the lot and otherwise conform to the cemetery regulations. The point has not been argued, and no opinion is expressed in relation to it.

The bill is defective in its allegations and will have to be amended.


Summaries of

Corin v. Glenwood Cemetery

COURT OF CHANCERY OF NEW JERSEY
May 15, 1908
69 A. 1083 (Ch. Div. 1908)
Case details for

Corin v. Glenwood Cemetery

Case Details

Full title:CORIN v. GLENWOOD CEMETERY.

Court:COURT OF CHANCERY OF NEW JERSEY

Date published: May 15, 1908

Citations

69 A. 1083 (Ch. Div. 1908)

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