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MACK v. PASSAIC NATL. BANK & TRUST CO.

September 26, 1955

Ruth P. MACK and Lucy P. Elias, Executrices of the Estate of Clara B. Prince, deceased, Plaintiffs, and Samuel F. Slaff et al., Plaintiff-Intervenors,
v.
PASSAIC NATIONAL BANK & TRUST COMPANY, Defendant



The opinion of the court was delivered by: WORTENDYKE

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.

 Findings of Fact.

 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.:

 'The said East Ridgelawn Cemetery shall first deduct from the proceeds of sale of said lots or plots such sum as the said East Ridgelawn Cemetery shall deem necessary to set aside for the perpetual care fund which sum however shall not be less than six cents per square foot of land sold for burial purposes said perpetual care fund shall be paid over by the East Ridgelawn Cemetery to the Passaic Trust and Safe Deposit Company and shall be invested together with income therefrom by the said Passaic Trust and Safe Deposit Company one-half of the balance of the proceeds of the sale of said lots and plots shall be paid by the East Ridgelawn Cemetery to the Passaic Trust and Safe Deposit Company and out of the remainder of the proceeds of said sales the said East Rigelawn Cemetery shall pay to the said Passaic Trust and Safe Deposit Company as the further consideration for such conveyances all moneys remaining after the deduction of the expenses of preserving and improving and embellishing the said Cemetery grounds and Avenues and roads leading thereto and for buildings thereon and the debts contracted for said Cemetery and for salaries wages and expenses incurred by the said Cemetery in carrying on its business and such an amount in addition thereto as the said Cemetery may deem proper to retain from time to time for the future embellishing of said Cemetery, it however being understood that the way in which said money shall be expended shall be entirely under the control of said Cemetery Company the Trust Company being in no manner liable therefore. The proceeds of said sale herein referred to shall be paid over to the said Trust Company, its successors or assigns monthly.

 '(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.

 '(7) That in case the said Cemetery shall make default in the performance of any of the duties and obligations on its part hereunder created and should fail or neglect or refuse to comply with the request of the said Trust Company its successors or assigns concerning the different matters provided in this agreement the said Trust Company its successors or assigns shall at the request in writing of fifty per centum of holders of shares actually issued have the right and power on behalf of and as the representative of the said share holders who may own such certificates as above mentioned to take such proceedings as it may be advised as proper to take and sequester the rents issues profits incomes and revenues derived from the sale of lots and other sources by said Cemetery and may sequester the same for the purpose of compelling the said Cemetery to perform the conditions contained in this agreement and herein mentioned and shall continue to sequester the same until the said Cemetery complies with the said requests of the said Trust Company its successors or assigns.

 '(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 ...


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