The opinion of the court was delivered by: WORTENDYKE
This case comes before the Court upon Mandate of the United States Court of Appeals for the Third Circuit, dated May 17, 1955, 221 F.2d 441, for prompt disposal of the merits of intervenor Kurzrok's claims, and also upon the alleged petition of Harry Dowret, an alleged plot owner in West Ridgelawn Cemetery, for leave to intervene, as a plaintiff, for the purpose of asserting claim to or an interest in the perpetual care fund of West Ridgelawn Cemetery. The so-called petition of Harry Dowret, as filed, and the notice of his motion for leave to intervene, were neither signed nor verified; nor was the draft of affidavit of service of copies of the petition and notice of motion signed or sworn to.
By consent order of July 25, 1955, former plaintiff-intervenor, Ernest Kurzrok, was permitted to withdraw from the case, and Samuel F. Slaff was substituted in his place and stead as a plaintiff-intervenor therein.
Form the evidence submitted upon the hearing on Mandate and Petition to Intervene aforesaid, the Court finds as follows:
1. On October 3, 1905 there was filed in the office of the Clerk of the County of Passaic, New Jersey, two Certificates of Incorporation, each dated September 30, 1905; one Certificate evidencing the incorporation of East Ridgelawn Cemetery and the other the incorporation of West Ridgelawn Cemetery; both pursuant to an enabling Statute of the State of New Jersey.
2. By deed dated December 21, 1906 and recorded in the office of the Register of Passaic County, New Jersey, in Book P-18 of Deeds, at page 641 (Exhibit E-R-4 of Sept. 13, 1955), Herbert B. Gruber conveyed in fee to Passaic Trust and Safe Deposit Co., a New Jersey corporation, certain tracts of land in the Township of Acquackanonk, Passaic County, New Jersey, aggregating somewhat in excess of 120 acres.
3. By written Declaration of Trust dated December 21, 1906 (Exhibit E-R-5 of Sept. 13, 1955) recorded in the Passaic County Register's Office in Book P-18 of Deeds at page 646, The Passaic Trust and Safe Deposit Company, after reciting the aforesaid deed to said trustor from Gruber (Exhibit E-R-4 of Sept. 13, 1955) acknowledged that said Trust Company held the premises described in said Gruber deed upon the following trusts:
'First: That on a request in writing of the said Herbert B. Gruber his administrator or executor it will convey the said land and premises above described to the East Ridgelawn Cemetery a body corporate of the State of New Jersey carrying on business in the Township of Acquackanonk in the County of Passaic and State of New Jersey, upon the following conditions:
'(1) That the said land is to be used by it for Cemetery purposes.
'(2) That the said East Ridgelawn Cemetery shall pay as consideration therefor such amount as it may receive from time to time as the proceeds of sale of said lots or plots in the following manner, viz.:
'(3) That the price for the sublots or plots in said Cemetery shall be fixed by the Cemetery.
'(4) That said proceeds of sale of said sub-lots or plots is hereby appropriated and is to be divided by said Cemetery into Thirteen Thousand five hundred (13,500) shares to represent which the said East Ridgelawn Cemetery shall issue a certificate or certificates to the said Trust Company in such form as shall be hereinafter recited.
'(5) That the said certificates when issued and delivered as herein provided shall be negotiable and assignable by the holder thereof his executors administrators successors or assigns and on the surrender up or cancellation of any certificates first issued under this agreement new certificates in place thereof shall be issued by said East Ridgelawn Cemetery to the person lawfully entitled to receive the same and the same shall be endorsed as hereinafter provided by the said Trust Company, its successors or assigns.
'(6) That the said East Ridgelawn Cemetery shall convey by its deed to Adam Frank, William H. Bonynge and Charles M. Howe at the execution of this agreement twelve hundred (1200) sub-lots or plots in said Cemetery as may be designated by them so that the said persons receiving such deed or their successors shall be qualified voters in the said Cemetery and will be able to control and manage the business and affairs of the said Cemetery provided that if any of the sub-lots or plots so conveyed to any such persons shall thereafter be sold to a bona fide purchaser by the said Cemetery the said grantees having the deed for said lots shall re-convey the lots so sold as the said Cemetery may request and accept in exchange therefor from the said Cemetery other lots and the proceeds derived from any such sale of sub-lots or plots shall be disposed of in the manner hereinbefore directed in the event of the death of the said Adam Frank his successor shall be selected and appointed by his legal representative.
'In the event of the death resignation or removal of either of the other voting trustees his successor shall be selected and appointed by said Adam Frank or his legal representatives from the Board of Trustees, subject however to the approval of the Board of Trustees.
'(8) That the said East Ridgelawn Cemetery on being requested in writing by sixty per centum of the said share holders will give its consent to the substitution of any other Trust Company mentioned in said request as a successor or assign of the Trust Company herein named which said Trust Company after being so substituted shall have the same rights and powers and have the same relations to the said East Ridgelawn Cemetery as the present Trust Company herein named.
'(9) That the form of certificate to be issued by the said East Ridgelawn Cemetery shall be as follows:
"Certificate of shares of proceeds of sale of The East and West Ridgelawn Cemeteries, Bodies corporate ...