Congregation Shaarai Shomayim v. Moss

Opinion by W. D. Porter, J., The cemetery lot in question was part of a tract of land which was, by deed dated February 3, 1747, conveyed by Thomas Cookson and wife to Isaac Nunez Rickus and Joseph Simons, their heirs and assigns, “ forever in trust for the Society of Jews, settled in and about Lancaster, to have and use the same as a burying ground.” The consideration mentioned in the deed was the sum of six pounds, and the presumption is that the land was sold and conveyed for its full value. The [360] estate which passed under this grant was a fee simple, not a base fee, subject to a condition, and the heirs of the grantor have no interest direct or remote in the property: Griffitts v. Cope, 17 Pa. 96; Barr v. Weld, 24 Pa. 84; First M. E. Church of Columbia v. Old Columbia Public Ground Company, 103 Pa. 608; Jones v. Renshaw, 130 Pa. 327; Smith’s Estate, 181 Pa. 109; Funck’s Estate, 16 Pa. Superior Ct. 434. The limitation “ in trust to have and use as a burying ground ” was not a qualification of the estate granted, but of the uses to which, in the hands of the cestui que trust, the land might be applied. The beneficial interest passing under this grant did not vest in all members of the Hebrew race, without regard to their place of domicil, nor did it vest in the individual members of that race who resided about Lancaster. The cestui qui trust was designated as “ the Society of Jews, settled in and about Lancaster.” This clearly indicates a religious society, organized for the purposes of their faith, and, if such a society existed, the title vested in the association and not in its individual members. The terms of the case stated preclude the possibility of there having been any latent ambiguity as to the identity of the cestui que trust. There was at the date of this grant a society of Jews in Lancaster, which then held religious services in the house of Joseph Simons, one of the trustees named in the deed, and which regularly continued its organization, worshiping in various places, until 1856, when it became duly incorporated, under the name of the plaintiff congregation. The land in question had been, prior to 1856, in the exclusive possession, management and control of the society mentioned, and since that date the incorporated congregation has exercised all the functions of exclusive ownership, and expended large sums of money in care and maintenance of the cemetery. There can be no doubt as to the identity of the beneficiary, and it is equally clear that' this incorporated congregation has succeeded to all the rights possessed by the original unincorporated religious society. At the time of the grant religious societies were, by the act of 1731, authorized to hold land for purposes of a burial ground, and therefore the conveyance to the trustees constituted an executed legal estate in the congregation itself. The use of the medium of trustees was a matter of form, and did not make this a case of a- charitable use. [361] “ Such trustees, seldom, if ever, convey to successors; but the title in their name is treated as the title of the congregation, to be used by the congregation at their discretion, but for such purposes as the law allows: ” Brendle v. The German Reformed Congregation, 33 Pa. 415; Chambers v. Calhoun, 18 Pa. 13. The society could legitimately hold this land “as a burying ground,” and the efficacy of the limitation upon the use embodied in the deed amounted to nothing, except to show that the land was held for a purpose for which the congregation was by law permitted to hold: Griffitts v. Cope, supra; Kerlin v. Campbell, 15 Pa. 500; Fernstler v. Seibert, 114 Pa. 196; Appeal of Gumbert, 110 Pa. 496. The title to the land having become, vested in the corporation, that body was vested with a discretion as to the manner of carrying into execution the purpose for which the land was held. No individual member of the congregation acquired a right to be buried in that ground save under such regulations as the congregation might reasonably impose: Craig v. First Presbyterian Church, 88 Pa. 42. The congregation had the power to impose such charges for burial rights as would insure the maintenance of the cemetery in proper condition, and to make such regulations, with regard to burial rights and family allotments as would tend to prevent unseemly contention. When such regulations were adopted by the congregation, the rights of all being made dependent upon the same conditions, all the members of the congregation were bound by them. The agreement between the defendant and the representatives of the plaintiff, and the deed tendered in accordance with the provisions thereof, did not constitute a diversion of the trust property nor even a conversion of the particular land to other uses. The agreement and deed to the defendant were made under the authority of the-by-laws of the congregation. The deed to the defendant, while all that he has a right under his agreement to demand, conveys nothing more than an exclusive license to bury his dead in that particular lot. That license is to be exercised “ under and subject to the provisions of the charter of incorporation of the congregation Shaaria Shomayim, and of the by-laws, rules and regulations under the same, as they now exist and may be. hereafter enacted and created.” This use of the land is within the limitation fixed by the deed under which the society origi [362] nally took title. We are of opinion that this congregation has the exclusive right to control this land for purposes of burial. They had the power to enter into the contract with this defendant upon which this action is based, and the deed which they have tendered would vest in him all that he has a right to demand under his agreement. The judgment is affirmed.