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Abra-May Cemetery Sales Co. v. Degel Yehudo Cemetery Corp.

Decided: October 14, 1966.

ABRA-MAY CEMETERY SALES CO., INC., A CORPORATION OF THE STATE OF NEW YORK, PLAINTIFF,
v.
DEGEL YEHUDO CEMETERY CORPORATION OF NEW JERSEY, A CORPORATION OF THE STATE OF NEW JERSEY (A/K/A FLORAL PARK CEMETERY), AND ARTHUR J. SILLS, ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, DEFENDANTS



Furman, J.s.c.

Furman

Plaintiff Abra-May Cemetery Sales Company is a New York stock corporation which owns 3 I/2 acres, or 4,000 to 7,000 grave sites, in defendant Degel Yehudo Cemetery Corporation's Floral Park Cemetery in South Brunswick Township, Middlesex County. Its predecessor corporation acquired title from one Hyman Abramowitz in 1943 at a purchase price of $20,000.

Abra-May seeks a declaratory judgment that it may sell off its cemetery land without obligation to provide for care and maintenance, subject to applicable rules and regulations of the cemetery in effect at the time of the conveyances from defendant to Abramowitz in 1942 and 1943, or from Abramowitz to itself, but not to amended and supplemental rules and regulations.

Both defendant, which counterclaims for care and maintenance assessments since 1943, and the Attorney General, who appears as a necessary party to safeguard the public interest, are in opposition.

The law of New Jersey is clear. Land dedicated for cemetery purposes is charitable trust property. Terwilliger v. Graceland Memorial Park Ass'n, 35 N.J. 259 (1961); Frank v. Clover Leaf Park Cemetery Ass'n, 29 N.J. 193 (1959); Passaic Nat'l Bank & Trust Co. v. East Ridgelawn Cemetery, 137 N.J. Eq. 603 (E. & A. 1946). The Rural Cemetery Act, in R.S. 8:2-11, prohibits profits to rural cemetery associations:

"After the payment of the purchase money and the debts contracted therefor, and the cost of surveying and laying out the lands, the proceeds of all future sales of plots or lots shall be applied to the preservation, improvement and embellishment of the cemetery of the association, and for incidental expenses, and to no other purpose or object, so long as such embellishment is incomplete."

The public policy against profits from the ownership and operation of cemeteries, which is set forth in R.S. 8:2-11, governs New Jersey stock corporations organized for profit, as well as cemetery associations.

"Whether the operation should be considered a charitable trust and a quasi -public institution depends upon the nature of the use of the lands, not upon the character of the operator. The criterion is public user for cemetery purposes; not whether ownership or control is in the hands of an individual, a general business corporation, or an incorporated cemetery association." Terwilliger v. Graceland Memorial Park Ass'n, supra, 35 N.J., at p. 265.

The cemetery owner enjoys a real property tax exemption (R.S. 8:2-27) and immunity from mortgage foreclosures (R.S. 8:2-27; Frank v. Clover Leaf Park Cemetery Ass'n, supra). To forestall the abandonment of cemeteries and other derelictions the Attorney General has consistently pressed in cemetery litigation for the establishment of trust funds for perpetual care and maintenance out of the proceeds of burial

plot sales. See Frank v. Clover Leaf Park Cemetery Ass'n, supra, 29 N.J., at p. 205; Atlas Fence Co. v. West Ridgelawn Cemetery, 120 N.J. Eq. 239 (Ch. 1936), affirmed 120 N.J. Eq. 615 (E. & A. 1936).

In the pretrial order the parties stipulate that Degel Yehudo Cemetery Corporation is a "quasi-public charitable trust." It is a stock corporation organized under Title 14 of the Revised Statutes. Burials in its ...


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