Diffendall v. Diffendall

• Decision Date: 14 May 1965
• Docket Number: No. 265,265
• Citation: 209 A.2d 914,239 Md. 32
• Parties: Charles A. DIFFENDALL v. Isabelle DIFFENDALL also known as Isabelle Martinez.
• Court: Maryland Court of Appeals

Page 32

239 Md. 32

209 A.2d 914

Charles A. DIFFENDALL v. Isabelle DIFFENDALL also known as Isabelle Martinez.

No. 265.

Court of Appeals of Maryland.

May 14, 1965.

L. Robert Evans, Towson, for appellant.

Samuel Kimmel, Townson, for appellee.

Before PRESCOTT, C. J., and HORNEY, MARBURY, SYBERT, and BARNES, JJ.

PRESCOTT, Chief Judge.

This case is one of first impression in this Court: An agreed statement of facts follows:

'The parties to this case were once husband and wife, and as such on February 17th, 1947, acquired title to a mausoleum compartment described as Family Compartment 'U,' * * *.

'Thereafter the parties to this case were divorced, A Vinculo Matrimonii, by decree of this Court dated prior to the judgment in this case, the Defendant being now known as Isabelle Martinez.

'On April 29th, 1953, in this case, this Court entered a judgment for the Plaintiff, Charles A. Diffendall in the amount of $2540.83 and costs, the total amount now due being more than $4000.00 plus costs, there having been nothing paid on account of the judgment.

'Since the acquisition of the said mausoleum compartment, neither party has conveyed or attempted to convey his interest in the compartment.

'Physically the mausoleum compartment is arranged in a vertical row of five spaces. It was purchased for the sum of Four Thousand Five Hundred Dollars ($4500), in 1947. Two of the spaces are now occupied by the bodies of the parties' son and the Plaintiff's and Defendant's grandson.

'The value of the Defendant's interest in the mausoleum compartment in question is in excess of Five Hundred Dollars. The Plaintiff is prepared and hereby agrees to bid at least $501.00 for Defendant's interest in the compartment.

'On April 19, 1963, A Writ of Fieri Facias was directed to the Sheriff of Baltimore County, upon instruction from the Plaintiff, and the Sheriff levied upon the mausoleum compartment in question, and nothing else.

'Attached to this stipulation and agreement is a copy of Certificate of ownership No. 486 whereby the parties to this case took title to the mausoleum compartment on February 17, 1947. This certificate of ownership is recorded among the Land Records of Baltimore County in Liber RRG, 4121, folio 77.

'That the three remaining crypts in the mausoleum compartment in question are not contiguous to each other, there being one remaining crypt separated from two other contiguous crypts by the bodies of the son and grandson referred to above.'

In addition to the agreed upon facts, the testimony discloses that in the family type compartment, the family name in large letters is placed at the top. The president of the mausoleum company would not permit either Mr. Diffendall or Mrs. Martinez to sell one of the crypts to a third person, unless he was presented with a court order or his attorney advised him that he had to. And the president had never known of the crypts in a family compartment being sold to third persons.

The trial judge held that the interest of Mrs. Martinez, defendant below, was not subject to execution; whereupon the appellant noted this appeal.

The only question presented for our determination is whether Code (1957), Article 23, Section 164, conflicts with Article III, Section 44, of the Maryland Constitution. Said Section 164 reads as follows:

'Every burial lot, sold or conveyed in such cemetery and every crypt sold or conveyed in any mausoleum, shall be held by the proprietors thereof for the sole purpose of sepulture and for no other, and shall not in any manner be subject to attachment or execution for debt or affected by the insolvent laws of this State; but the estate of the owner or owners in their respective lots and crypts shall descend as real estate to heirs, may be devised by will or may be disposed of by the owner by sale with the approval of the president and managers of the cemetery or mausoleum corporation or of any person or corporation acting as trustee therefor.'

Section 44 provides: 'laws shall be passed by the General Assembly, to protect from execution a reasonable amount of the property of the debtor, not exceeding in value, the sum of five hundred dollars.'

It is appellant's contention that the Martinez interest in the crypts is 'property' and the value of that property is in excess of $500; hence the legislative act must yield to the constitutional provisions.

There can be little doubt that the word 'property,' when considered in a broad sense, is a term of wide and rather comprehensive signification. Cf. Elkton Electric Company v. Perkins, 145 Md. 224, 125 A. 851 (personal property); 73 C.J.S. Property § 1. It has been stated that the term embraces everything which has exchangeable value or goes to make up a man's wealth--every interest or estate which the law regards of sufficient value for judicial recognition. Samet v. Farmers' & Merchants' Nat. Bank of Baltimore, 247 F. 669 (C.A. 4).

However, through the ages, all civilized peoples have considered the final resting place of their dead as hallowed and sacred ground. Hence the Courts and legislative bodies have almost universally recognized that the 'property' or 'estate' which one acquires when he purchases a cemetery lot or a crypt is a 'qualified' property or estate. It is generally referred to, even though conveyed by a deed absolute in form, as an easement, privilege, or license for the sole purpose of sepulture as long as the property remains a cemetery. ¹ Partridge v. First Ind. Church, 39 Md. 631; Rayner v. Nugent, 60 Md. 515. And such estates are generally not held for the purpose of barter or sale; consequently, they seldom have any commercial connotation. Abell v. Green Mount Cemetery, 189 Md. 363, 56 A.2d. 24, 174 A.L.R. 971. Cf. Hines v. State, 126 Tenn. 1, 149 S.W. 1058; Schroder v. Wanzor, 36 Hun (N.Y.) 423.

This Court has recognized that, subject to constitutional limitations, the State, in the exercise of its police powers, has the right to provide for the creation...