Passaic Nat. Bank & Trust Co. v. East Ridgelawn Cemetery. Van Riper
| Decision Date | 31 January 1946 |
| Docket Number | Nos. 225, 226, 230, 231.,s. 225, 226, 230, 231. |
| Citation | 45 A.2d 814 |
| Parties | PASSAIC NAT. BANK & TRUST CO. v. EAST RIDGELAWN CEMETERY. VAN RIPER, Atty. Gen., et al. v. WINNE et al (Intervenors). |
| Court | New Jersey Supreme Court |
OPINION TEXT STARTS HERE
An action was brought by Passaic National Bank & Trust Company against East Ridgelawn Cemetery, wherein a final decree was rendered adjudging the cemetery association to pay a certain amount received from sale of cemetery lands for burial purposes for the account of the dividend fund set up in the declaration of trust made by complainant and pursuant to a conveyance of lands for cemetery uses to the cemetery. The decree remained unsatisfied. Walter G. Winne and another, substituted trustees, etc., petitioned for appointment of a sequestrator to take the revenues derived from the sale of burial plots and apply them to the satisfaction of moneys decreed to be due. The East Ridgelawn Cemetery filed a cross-petition and Walter D. Van Riper, Attorney General, and Vivian D. Bell and others intervened. From orders and a decree for petitioner which also denied motions for leave to intervene filed by Vivian D. Bell and others, defendant and interveners appeal.
Reversed and remanded.
Carey & Lane, of Jersey City (Robert Carey and Harry Lane, both of Jersey City, of counsel), for appellant East Ridgelawn Cemetery.
Walter D. Van Riper, of Newark (Sackett M. Dickinson, of Trenton, of counsel), for Attorney General in pro. per.
William L. Rae, of Jersey City, for appellants Vivian D. Bell, Lot Owners, and Mabel L. Smith, Certificate Holders, and others.
Isadore Glauberman, of Jersey City, for respondents.
On July 18, 1933, a final decree was entered in this cause on the advice of the late Vice Chancellor Backes, adjudging that under the provisions of a declaration of trust made by complainant and a conveyance of lands for cemetery uses to the East Ridgelawn Cemetery pursuant thereto, there was ‘payable’ to complainant by the cemetery association, out of moneys received from the sale of the association's lands for burial purposes, ‘for the account of the dividend fund’ set up in the declaration of trust, the sum of $205,973.63, and the further sum of $3,418.67, for the ‘perpetual care fund.’ It was therein also provided that ‘all further questions are reserved at the foot of this decree for further action, and that either party shall have leave from time to time to apply to the court for further direction hereunder as occasion shall arise.’ One of the conditions of the conveyance is that the cemetery association shall pay, ‘as consideration therefor, such amount as it may receive from time to time as the proceeds of sale of lots or plots,’ in manner following: The association shall first deduct from the proceeds of sale of the lots or plots such sum as it may deem necessary for the ‘perpetual care fund,’ not less than 6 cents per square foot of land sold for burial purposes, and pay the same to complainant for investment, and then shall pay to complainant one-half of the balance of the proceeds of such sales, and also, as a further consideration for the conveyance, all moneys remaining after the allowance of the expense of preserving, improving and embellishing the cemetery grounds, and avenues and roads leading thereto, and for building thereon, and all debts and operating expenses, and such an amount as the association may deem proper to retain from time to time for the future embellishment of the cemetery. There is also a provision for the issuance of negotiable certificates of interest in the proceeds of the sale of the lots.
The decree remains unsatisfied; and on February 5, 1945, the respondents, Messrs. Winne and Furst, as trustees for the holders of certificates of shares of the proceeds of the sale of lots, substituted in the place and stead of complainant by appointment of the Federal District Court, petitioned the Chancellor for the appointment of a sequestrator to take the revenues derived from the sale of burial lots and apply them to the satisfaction of the moneys thus decreed to be due, with interest, pursuant to R.S. 8:2-29, N.J.S.A. An order was thereupon made directing the Attorney General and the cemetery association to show cause why this relief should not be granted. An answer and cross-petition were interposed by the cemetery association setting forth, inter alia, that the decree did not ‘direct’ the payment of the amount thus adjudged to be ‘payable’; that the validity of the declaration of trust and the covenant relating hereto embodied in the deed of conveyance to it was not thereby determined; that, on the authority of the case of Atlas Fence Co. v. West Ridgelawn Cemetery, 119 N.J.Eq. 552, 182 A. 902, the provision in the deed of trust of a dividend fund out of the proceeds of sale of lots is wholly void, and the trustees for the certificate holders are entitled to receive only the fair value of the land conveyed to it at the time of the conveyance, with interest, and without priorities over other creditors and, particularly, the holders of certificates of indebtedness; that it is now necessary to use all the moneys derived from the sale of burial lots for the upkeep and maintenance of the cemetery grounds and the payment of interest on and the redemption of the certificates of indebtedness, and there are no funds available for the payment of any moneys held to be due respondents as trustees for certificate holders, and, moreover, that the claims asserted on behalf of the certificate holders are barred by R.S. 2:24-1, N.J.S.A. and by laches; and praying for relief accordingly, ‘at the foot of the final decree.’ The Attorney General answered that he was not a party to the original suit and is, therefore, not bound by the final decree; that he is, ex officio, the representative of the public and, in particular, present and future owners of burial lots in the cemetery; and that he joined in the cemetery association's averments that the provision for a dividend fund in the trust deed is void, and the trustees for the certificate holders are only entitled to the fair value of the land thus conveyed, with interest, but without priorities over other creditors.
Vice Chancellor Egan, on motion, struck out the answer and cross-petition of the cemetery association and the answer of the Attorney General, and directed the sequestration of the proceeds of the sale of the cemetery lands, and appointed sequestrators to take the proceeds of such sales into their...
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