Silvia v. Helger.

• Decision Date: 17 June 1949
• Docket Number: No. 1935.,1935.
• Citation: 67 A.2d 27
• Parties: SILVIA et al. v. HELGER.
• Court: Rhode Island Supreme Court

67 A.2d 27

SILVIA et al.

v.HELGER.

No. 1935.

Supreme Court of Rhode Island.

June 17, 1949.

Appeal from Superior Court, Newport County; Philip C. Joslin, Judge.

Suit by Frank P. Silvia and others for an injunction ordering Mary Helger to remove the body of her grandchild from a cemetery lot and restore the lot to its original condition. From a decree denying and dismissing the bill, complainants appeal.

Appeal sustained in part.

Sheffield & Harvey, W. Ward Harvey, Newport, for complainants.

Burdick, Corcoran & Peckham, Patrick O'N. Hayes, Newport, for respondent.

O'CONNELL, Justice.

This is a bill in equity seeking a mandatory injunction ordering the respondent to remove the body of her grandchild from a cemetery lot and restore the lot to its original condition. The cause was heard in the superior court on bill and answer, and from a decree denying and dismissing the bill the complainants have duly prosecuted their appeal to this court.

The bill alleges that the complainants, the respondent and Joseph Silvia and Jesse Silvia are brothers and sisters, and all the children and heirs at law of Frank Silvia, deceased. Joseph Silvia and Jesse Silvia are not parties to this cause. The bill further alleges that said Frank Silvia purchased lot No. 165 in the Pocasset Hill Cemetery in the town of Tiverton in this state by deed dated August 7, 1899; that upon his death title to the lot descended to his children as tenants in common; that on or about April 1, 1946, the respondent, without the knowledge or consent of the complainants or of Joseph and Jesse Silvia, buried in said cemetery lot, in violation of the rights of the complainants, one ‘Baby Vaz,’ a grandchild of the respondent and great-grandchild of Frank Silvia.

Complainants rested their case on the sworn bill and the respondent presented no evidence in opposition thereto. It appears therefore that the complainants, the respondent and Joseph and Jesse Silvia held the cemetery lot upon the death of their father as tenants in common. It is a well-recognized rule of law that one tenant in common may make any reasonable use of the land held, so long as it does not operate to exclude the other tenants from enjoying their equal privileges. But in the case of a cemetery lot, while a single owner may permit the interment of a relative or even a stranger therein, where there are two or more owners no one of them has that right; it would require the consent of all. Lewis v. Walker's Exrs., 165 Pa. 30, 30 A. 500. So long as the land is used for burial purposes, the owner cannot exercise the same rights of ownership as in other real estate. Gardner v. Swan Point Cemetery, 20 R.I. 646, 40 A. 871, 78 Am.St.Rep. 897.

In re Waldron, Petitioner, 26 R.I. 84, 58 A. 453, 454, 67 L.R.A. 118, 106 Am.St.Rep. 688, the court said that ‘a burial lot does not pass under a general residuary devise, but it descends to the heirs as intestate property. It is a family burial lot. It is that fact alone which gives a peculiar limitation to its tenure. The heir takes it subject to all the conditions for which the ancestor held it. A sort of trust attaches to the land for the benefit of the family.’

In the instant cause there is no evidence before us as to the size of the burial lot nor as to how many bodies may be interred therein. Since the heirs take such lot subject to all the conditions for which the ancestor held it, the tenants in common would hold it with the right to be buried therein in the order in which they deceased, provided there was burial space still available. If the lot were not sufficiently large, the last members of the family to die would thereby lose their right to be buried therein. This is one of the incidents attaching to their inheritance of a lot dedicated to burial purposes.

It would follow, therefore, that if one of the cotenants, without the consent and approval of the others, had placed in the burial lot the body of a stranger or even a relative, such action might deprive one of the other owners of a place of burial therein to which he or she might otherwise be entitled. In such circumstances if objection had been made by any one of the...