German Evangelical St. Marcus Congregation of St. Louis v. Archambault

• Decision Date: 14 September 1964
• Docket Number: No. 50263,No. 1,50263,1
• Citation: 383 S.W.2d 704
• Parties: The GERMAN EVANGELICAL ST. MARCUS CONGREGATION OF ST. LOUIS, a Corporation, Respondent, v. Esther ARCHAMBAULT et al., Appellants
• Court: Missouri Supreme Court

Page 704

383 S.W.2d 704

The GERMAN EVANGELICAL ST. MARCUS CONGREGATION OF ST. LOUIS a Corporation, Respondent, v. Esther ARCHAMBAULT et al., Appellants.

No. 50263.

Supreme Court of Missouri, Division No. 1.

Sept. 14, 1964.

Motion for Rehearing or to Transfer to Court En Banc Denied

Nov. 9, 1964.

Thomas F. Eagleton, Atty. Gen., George D. Chopin, Sp. Asst. Atty. Gen., St. Louis, for appellant, Thomas F. Eagleton, Atty. Gen. of Missouri.

Herman M. Katcher, W. Donald Dubail, Oscar E. Buder, St. Louis, for appellants, Edith C. Shelton and others.

Melville A. Ochsner, St. Louis, for respondent.

WELBORN, Commissioner.

By this action brought by The German Evangelical St. Marcus Congregation of St. Louis, the owner of a tract of land dedicated to cemetery purposes, against the defendants, owners of burial lots in such cemetery and as the representatives of all such owners, the plaintiff sought a decree authorizing the abandonment of the cemetery, removal of the remains of all persons buried therein and the approval of the sale of the property by warranty deed conveying fee simple title free of all limitations upon the use of the realty for cemetery purposes. The trial court granted the relief requested. The defendant lot owners and the Attorney General of Missouri, who was also named a party defendant on the theory that a public charitable trust was involved, have appealed. We have jurisdiction because title to real estate is involved, in view of the object of the relief sought to terminate the interests of burial lot owners in the land in question. Billings v. Paine, Mo.Sup., 319 S.W.2d 653, 656(4-6).

By its amended petition plaintiff alleged that it was incorporated as a religious corporation by pro forma decree on October 27, 1879; that, among its corporate powers, was the owning of real estate for conducting cemeteries; that plaintiff became the owner of real property in the City of St. Louis which had been operated as a cemetery by the trustees for the congregation of St. Marcus for many years prior to plaintiff's incorporation and that, after such acquisition, the cemetery was operated by plaintiff. The petition alleged that, on July 2, 1962, an ordinance of the City of St. Louis withdrew Old St. Marcus Cemetery from the list of cemeteries in which interment was permitted in the city of St. Louis. The petition also alleged that, prior to 1929, endowed care for cemetery property was little known and that many lots had been sold in plaintiff's cemetery under rules and regulations making the owners of the lots responsible for the care and maintenance; 'that because of the death of such owners and the failure of descendants to provide such care and maintenance and due to the ravages of time and the elements the graves and lots are and have been overgrown by weeds and have become sunken and the monuments, markers, headstones and railings enclosing burial plots have been deteriorated, worn, corroded, illegible or undecipherable, and dislodged from their original sites.' Plaintiff alleged that the cemetery was located in a section of the City of St. Louis which is being developed and improved with dwellings and business buildings and that the property was particularly well suited for such development; that the plaintiff has no funds for the maintenance of the cemetery and no legal duty to maintain the same; that the cemetery property is tax free and that, if removed from cemetery purposes and sold, it would be added to the city tax lists of the City of St. Louis.

The petition further alleged that plaintiff owned a large cemetery in St. Louis County, known as New St. Marcus Cemetery, and that it proposed to reinter the remains in the old cemetery in the new without cost to the lot owners or descendants of the owners of the rights of burial.

By their answers defendants generally denied the allegations of the plaintiff's petition. Some of the answers charged 'that the condition described in plaintiff's petition is a result of a plan conceived and adopted by plaintiff for the purpose of intentionally allowing the cemetery owned by plaintiff known as Old St. Marcus Cemetery to deteriorate, decline in appearance, and to become an eye sore in the Community; that said plan originated on the part of the plaintiff with the plan adopted by it at a meeting of its Board of Directors in 1956; that thereafter to make said plan fully effective, that plaintiff did fail, refuse and since that date has failed to maintain, operate and properly care for the lots and properties of said cemetery.' Some answers further charged that the plaintiff encouraged the enactment of the ordinance by the Board of Aldermen of the City of St. Louis by which Old St. Marcus Cemetery was removed from the list of cemeteries in the City in which interments were permitted. The crossbills of some of the defendants requested a declaration that the ordinance prohibiting further interments was void and sought an accounting of the perpetual care fund of the Old St. Marcus Cemetery.

After hearing oral testimony offered by the plaintiff and receiving documentary evidence offered by plaintiff and the defendants, the trial court entered its decree granting the relief sought in the petition and denying the relief sought in the crossbills. After their motions for new trial had been overruled, the defendants appealed to this court.

On this appeal, defendants contend that plaintiff's action was not properly brought against the defendants as a class action and that plaintiff failed to allege and prove that defendants as class representatives had been fairly chosen and that they adequately represented the lot owners as a class. Defendants also contend that plaintiff's petition failed to state a claim on which relief may be granted because it failed to allege that the lot owners in Old St. Marcus Cemetery had abandoned their rights therein or that the cemetery was no longer kept as a cemetery, no longer preserved as a cemetery, no longer known to the public as a cemetery, or any other facts to show that it had actually been abandoned in fact; further, that the trial court erred in granting relief because the evidence did not show that the cemetery had been abandoned and showed no basis for the relief sought.

The evidence showed that the tract in question was acquired by the trustees of the predecessor organization of plaintiff, The German Evangelical Congregation of the Southern Part of the City of St. Louis, by deed dated January 3, 1856. The tract originally contained approximately 28.5 acres, but its area was subsequently reduced to 25.51 acres by the acquisition of portions thereof for street widenings.

The plaintiff corporation was incorporated by pro forma decree in 1879. The property in question was transferred, on December 4, 1916, to the plaintiff corporation by the successor trustees to the original grantees.

The deed of dedication, if any, of the property for cemetery purposes does not appear in evidence. An undated plat was introduced in evidence. Just when the use of the tract for cemetery purposes began does not clearly appear although it apparently began shortly after the 1856 acquisition. The original sale document for a lot sold in 1883 was introduced in evidence. Somewhat more than 33,000 burial sites were provided in the cemetery. At the time of the hearing in this case, 19,566 persons had been buried there.

In 1897, plaintiff opened another cemetery in St. Louis County, known as New St. Marcus Cemetery. The operation of both cemeteries has, since 1936, been by a cemetery board of five of the fourteen members of the church council, the church executive body.

The last recorded sale of a lot in the old cemetery was in 1923. Appearently no particular effort was made to sell lots in the old cemetery after that date. However, interments continued until the enactment of the city ordinance in 1962. Three interments were made in 1962, twelve in 1961, sixteen in 1960 and twenty in 1959.

On December 19, 1955, the cemetery board passed a resolution calling for the submission to the plaintiff corporation and its members a proposal that Old St. Marcus Cemetery be removed from dedication as a cemetery and abandoned as such. The minutes of the board meeting at which the resolution was adopted recited that the board had received from Louis H. Wissmann 'a tentative offer of Eighty-five Thousand Dollars ($85,000) for the property now known and shown on plot as the Old St. Marcus Cemetery. The above offer is made subject to the removal of all bodies deemed necessary by the cemetery law, together with markers and stones.' The minutes further recite: 'The Board considered with favor this offer subject to passage of resolution and ratification by the Congregation at its annual meeting January 17, 1956.'

On December 19, 1955, the church council passed a similar resolution and on January 17, 1956, the congregation authorized the cemetery board 'to enter into such negotiations as they may deem proper and to give consent to the institution of such legal proceedings, including but not limited to, condemnation, as they may deem proper, and to cause such ordinances or statutes to be prepared and introduced into the proper governmental body or bodies, for the removal from dedication as a cemetery and abandoned as such, the Old St. Marcus Cemetery * * *.'

The evidence in the record is limited as to what steps were thereupon taken in order to effectuate this resolution. However, subsequent cemetery board minutes contained frequent reference to the presence at the board meetings of 'Mr. L. Wissmann, Agent for Cemetery.' Payments totalling $6,000 to Wissmann for expenses were approved by the board.

In July, 1961, a sale contract was entered into by the board and Frederick O. Whaley, described as a 'client of Wissmann,' for the sale of the old cemetery tract for a total of $760,000 conditional upon a favorable decree permitting abandonment of the cemetery and the...