Avery v. Forest Lawn Cemetery Co.

• Decision Date: 17 June 1901
• Citation: 86 N.W. 538,127 Mich. 125
• Court: Michigan Supreme Court
• Parties: AVERY et al. v. FOREST LAWN CEMETERY CO. (DETROIT SAV. BANK, Intervener).

86 N.W. 538

127 Mich. 125

AVERY et al. v. FOREST LAWN CEMETERY CO. (DETROIT SAV. BANK, Intervener).

Supreme Court of Michigan

June 17, 1901

Appeal from circuit court, Wayne county, in chancery; George S Hosmer, Judge.

Action by John H. Avery and othes, as executors of the will of Darius N. Avery, deceased, against the Forest Lawn Cemetery Company, in which the Detroit Savings Bank intervened. From a judgment in favor of the intervener, plaintiffs appeal. Affirmed.

Gray &amp Gray, for appellants.

Sidney T. Miller and James Cosslett Smith, for defendant bank.

LONG, J.

The bill is filed in this case by the executors of the last will of Darius N. Avery against the Forest Lawn Cemetery Company to obtain a decree against said company authorizing the sale of certain real estate held by the company for cemetery purposes, to pay a judgment obtained by complainants in the Wayne circuit court on December 31, 1898, for $18,519.55 and costs taxed at $22. The defendant company was organized in 1889 under Act No. 12, Sess. Laws 1869, which provides for the organization of such companies to encourage the formation and to establish rural cemeteries and the maintenance thereof. After its formation the company purchased certain real estate for burial purposes. It first purchased 80 acres in December, 1889, and shortly thereafter purchased on executory contract a 20-acre tract adjoining. In 1893, under the authority of the act for the formation of such companies it prepared plans for laying out said two parcels of land as a cemetery, with burial lots, ornamental grounds, roads and pathways, and recorded said plan in the office of the company, and has from time to time since granted to various persons rights of burial in certain parts of the cemetery, it being intended that the whole should remain as a cemetery under the plan aforesaid. In June, 1898, the company purchased an additional 10 acres for the purpose of dividing the same into burial lots. This last 10 acres was purchased under an executory land contract, and the company, being indebted on the contract for the 20 acres, as well as for the 10 acres, was unable to pay for the said 10 acres. That contract was afterwards declared forfeited, and reverted to the vendor in the contract. The defendant company paid about $25,000 for the land now held, and has expended thereon about $85,000. It has no assets except these lands. It appears that at one time, in order to raise funds, it issued interest-bearing stock. It became further embarrassed, and borrowed money from time to time of Darius N. Avery. He held 264 shares of preferred and 618 shares of common stock. The Detroit Savings Bank, one of the defendants, owned 116 shares of stock of the par value of $11,600. After the bill in this cause was filed, the Detroit Savings Bank was permitted to intervene as a defendant.

It is alleged in the bill that the corporation has not sufficient funds with which to continue the maintenance of said cemetery; that it has no claim against any of the stockholders, because said stock in their hands is fully paid; 'that your orators have proposed to the other stockholders that all shall unite in paying a sufficient sum to insure the maintenance of said cemetery; that about three-fourths of the stockholders in value are prepared to pay such assessment as may be necessary for this purpose, but that the remaining stockholders are unwilling to make any advances, and the majority are unwilling, therefore, to make any payments which shall inure to the benefit of the minority unless the latter contribute their proportion.' The prayer of the bill is that, in order to preserve the present burial rights in the cemetery, the lands may be sold, with such provision as the court may deem proper for the preservation of burial rights; that the proceeds of the sale be applied to the payment of the judgment; and that the cancellation of the contract for the purchase of the 10 acres be confirmed. The defendant Detroit Savings Bank filed an answer to the bill, alleging that the lands first described in the bill are exempt from sale under any decree or order of the court, and prayed the same...