McAndrew v. Quirk

• Decision Date: 06 November 1952
• Citation: 329 Mass. 423,108 N.E.2d 667
• Parties: McANDREW v. QUIRK et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 667

108 N.E.2d 667

329 Mass. 423

McANDREW v. QUIRK et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 8, 1952.

Decided Nov. 6, 1952.

Charles I. Quirk, pro se.

Lenahan O'Connell and Sherman Rogan, Boston, for appellee.

Before QUA, C. J., and RONAN, WILKINS, SPALDING and COUNIHAN, JJ.

RONAN, Justice.

The plaintiff brought this bill in equity against her brother and a cemetery corporation to determine her right to have her deceased husband buried in a lot which her father acquired in 1890, and to compel her brother to deliver to the cemetery corporation the deed of the lot, which he refuses to surrender, in order that the body of the deceased may be interred in the lot. The corporation filed no answer and took no active part in the controversy. The individual defendant appealed from a final decree granting the plaintiff the relief which she sought.

The evidence is not reported. The judge made voluntary findings of fact, all of which may be summarized as follows. The individual parties are the only surviving children of John Quirk, who died in 1904, and Julia A. Quirk who died in 1928. Quirk purchased in 1890 from the cemetery corporation a lot measuring 17 by 32 feet, described as lots 120 and 121, 'to have and to hold the same to said John Quirk, his heirs and assigns, to his and their use as a place of burial for the dead.' This deed did not convey a fee in the lot but conveyed only a license to bury the dead. Each of the individual parties as the only surviving children and next of kin of the original grantee has an undivided interest in lots 120 and 121 which contain eight graves, all of which are occupied but one. It is permissible under the regulations of the board of health to bury two bodies in one grave and there are no rules of the cemetery relative to the burial of more than one body in a single grave. After the finding of these specific facts, the judge continued as follows: 'I therefore rule that the complainant has a right to have her husband buried in a grave somewhere in one of these seven lots other than the one numbered 8 that is now vacant in lot #121, since that one should be reserved for the complainant or the respondent.' A final decree was entered in accordance with this ruling.

In addition to these findings the bill alleges and the answer of the individual defendant admits that their parents, three brothers and a grandson of John Quirk have been buried in these lots at the approximate dates alleged. ¹ These admissions in the pleadings bind the parties and show beyond dispute that no interments were made in these lots except those of the immediate family of the purchaser of the lots with the further exception of the grandson who, we assume from the similarity of name, was the child of the plaintiff. Bancroft v. Cook, 264 Mass. 343, 162 N.E. 691; Carson v. Brady, 329 Mass. ----, 106 N.E.2d 1.

We cannot accept as evidence the numerous statements of counsel which appear only in the briefs and are not shown to be supported by the record. Gordon v. Guernsey, 316 Mass. 106, 108, 55 N.E.2d 27; Staples v. Collins, 321 Mass. 449, 450, 73 N.E.2d 729; Comstock v. Dewey, 323 Mass. 583, 585, 83 N.E.2d 257. The principle that where voluntary findings do not appear to contain all the material facts all other facts necessary to support the decree will be implied, Birnbaum v. Pamoukis, 301 Mass. 559, 17 N.E.2d 885; Wilkins v. Berkeley Realty Corp., 311 Mass. 148, 40 N.E.2d 263, has no application because the judge's ruling that the plaintiff is entitled to relief is expressly based, by the use of the word 'therefore,' upon the subsidiary findings recited by him. They comprise the factual basis upon which the judge decided the suit. Walsh v. Atlantic Research Associates, Inc., 321 Mass. 57, 61, 71 N.E.2d 580. See Mahoney v. C. & R. Construction Co., 311 Mass. 558, 42 N.E.2d 255; Rubino's Case, 328 Mass. 129, 102 N.E.2d 64. The question here is whether the facts admitted by the pleadings and those found by the judge support the final decree.

The purchaser of a cemetery lot ordinarily does not obtain a fee in the lot but acquires only a right to burial or an easement to use the lot for the burial of the dead so long as the place continues to be used as a cemetery. Schier v. Trinity Church, 109 Mass. 1; Feeley v. Andrews, 191 Mass. 313, 77 N.E. 766; Trefry v. Younger, 226 Mass. 5, 114 N.E. 1033. John Quirk during his lifetime had the exclusive right, subject to whatever conditions were contained in the instrument by which he obtained his interest in the lot, to say who should be buried in his lot. If he died intestate, his interest passed 'Indivisible but Inheritable' to his heirs at law. See G.L. (Ter.Ed.) c. 114, § 29. If he died testate and his will made no express disposition of his burial lot 'wherein he or any member of his family is buried, the ownership of the lot shall not pass from his lawful heirs by any residuary or other general clause of the will, but shall descend to his heirs, as if he had died intestate.' G.L.(Ter.Ed.) c. 114, § 31. Such a lot was considered as a family lot, and this statutory provision was made apparently to keep the lot in the family of the testator. The title to the statute, St.1914, c. 492, from which § 31 originates read as follows: 'An Act to provide for the better protection of family cemetery lots.' The title only confirms what the...