Abell v. Proprietors of Green Mount Cemetery

• Decision Date: 11 December 1947
• Docket Number: 43.
• Citation: 56 A.2d 24,189 Md. 363
• Parties: ABELL v. PROPRIETORS OF GREEN MOUNT CEMETERY.
• Court: Maryland Court of Appeals

56 A.2d 24

189 Md. 363

ABELL v. PROPRIETORS OF GREEN MOUNT CEMETERY.

No. 43.

Court of Appeals of Maryland

December 11, 1947

Appeal from Circuit Court No. 2 of Baltimore City; Edwin T Dickerson, Judge.

Suit by Mrs. A. S. Abell against the proprietors of the Green Mount Cemetery to enjoin defendants from preventing complainant from placing two sculptured lions on cemetery lot. From a decree dismissing the bill, complainant appeals.

Affirmed.

Thomas G. Andrew, of Baltimore, for appellant.

Randolph Barton, Jr., and William B. Kempton, both of Baltimore, for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

MARBURY Chief Judge.

On July 29, 1914, the appellant purchased from appellees a lot in Green Mount Cemetery and received therefor a certificate of ownership which conveyed the lot to her, her heirs and assigns forever 'for the purpose of sepulture only and for no other use or purpose whatever * * * and subject also to the conditions and limitations and with the privileges hereinafter set forth.' One of these conditions was as follows:

'All enclosures, monuments, or other structures upon the said Lot shall be of such design as may be approved by the Officers of the said Corporation, and shall be so placed as not to encroach upon any other lot or upon any avenue or path of the Cemetery; and the said Corporation reserves the right at any time to remove or have removed any enclosure, monument, or other structure whatever, or any inscription, which its President and Manager may deem improper or detrimental.'

In this lot were buried the husband, two grandsons and the son of the appellant. She owned four sculptured lions purchased in Italy about 80 years ago, two of which she had placed on the steps of her residence in Baltimore. The other two she had in storage. Some time in the year 1940 she requested permission of the appellees to place two of these lions on her cemetery lot. It appears from the bill of complaint herein that the lion has been identified with her husband's family for more than four generations, and has been used as insignia to identify their property. The manager of the cemetery, Mr. Dove, brought up the matter through the President of appellee, General Lawrason Riggs, at a meeting of the Board of Directors, and as a result he was instructed by General Riggs to write Mrs. Abell that the lions could be placed as she desired, provided she deposited with the Company $400 to give her lot a limited perpetual care. Mrs. Abell did not reply to this letter, nor did she accept the proposition.

In December 1945, Mr. Dove was advised by certain dealers in stone work that they had been asked by the appellant to install the lions on her lot, and they wished to get permission from the Board to do so. Mr. Dove immediately brought the matter to the attention of the Board, and the latter, after due consideration, decided unanimously that the installation of the lions would be inappropriate and that they would not be allowed to be placed on the appellant's lot. After some further discussion by the parties and their attorneys, the appellant filed a bill of complaint in the Circuit Court No. 2 of Baltimore City, asking that the Proprietors of the Green Mount Cemetery, their officers, agents and employees be enjoined from preventing her from placing her two lions on her lot. An answer was filed to this bill, testimony was taken, and the Chancellor entered a decree dismissing the bill of complaint. From that decree, comes this appeal.

Appellant contends that the limitation contained in her certificate of ownership is too vague and indefinite to be enforced. She notes the absence of standards by which the management is to be guided. But the contracts and agreements of a cemetery company (a private corporation) are to be construed in the light of the circumstances surrounding their making and the subject matter involved. A place for the burial of the dead has characteristics differing from those of an ordinary tract of land. To many it is sacred ground which should not suffer intrusion from mundane objects. The authorities in charge must consider not only the desires of individual lot owners to remember their dead. They have also to consider the sensibilities and feelings of other lot owners who may have different ideas of the appropriateness of proposed monuments and structures. Obviously they must have some authority to forbid those which are clearly unseemly and improper. Just as obviously, this authority must not be unlimited and autocratic. Except as to shape and size it is impractical to frame a restriction or limitation which is specific and definite. There may be thousands of different styles of stones, monuments, mausoleums, vaults and statues which bereaved relatives may wish to erect in memory of those who have passed away. Certain types of cemeteries require uniformity in style, height and shape of stones or markers. But the ordinary burial ground makes no such conditions. As to it there is no way to cover all cases, unless general authority is conferred upon the management to pass upon the nature and character of proposed structures. Such is the limitation frequently found in deeds or certificates for cemetery lots, and such is the limitation in the one before us in this case.

The appellant in furtherance of her position shows that Section 176 of Article 23 of the Code provides that the estate of the owner in a burial lot in a cemetery is real estate, that the Act of 1837, Chapter 164, incorporating the Proprietors of the Green Mount Cemetery declares a lot in that cemetery to be real estate, and that the case of Silverwood v Latrobe, 68 Md. 620, 13 A. 161, states that the grantee of such a lot has a qualified fee limited to the purpose of sepulture. She therefore claims that restrictions on the use of such lots should be treated in the same manner as ordinary restrictions on the use of land and should be held invalid. It is true that restrictions on the free use of land are not favored by the law, and are strictly constured against the grantor. McKenrick v. Savings Bank, 174 Md. 118, 197 A. 580; Whitmarsh v. Richmond, 179 Md. 523, 20 A.2d 161; Yorkway Apartments v. Dundalk Co., 180 Md. 647, 26 A.2d 398. But this principle of construction is based upon the public policy that it is for the benefit of the community generally that there should be a free and unencumbered right in an owner to use or transfer land. Lots in a cemetery are not supposed to be purchased for purposes of transfer, although in some c...