Plaintiff is the widow of Pasquale Galasso, who died March 9, 1970, and is the sister of defendant Del Guercio. The subject matter in dispute is the use of space in the Del Guercio family mausoleum in Holy Cross Cemetery, North Arlington. (The cemetery is located in Bergen County; but the litigants have consented to this court deciding the case. The cemetery has also agreed that the final judgment insofar as it shall relate to the burial of the remains of Pasquale Galasso, shall be binding upon it.)
Defendant Del Guercio immediately after Pasquale Galasso's death objected to use of the mausoleum as Galasso's place of burial. On the eve of the funeral the complaint was filed and an interim restraint obtained, thus enabling plaintiff to have her husband's body placed in the mausoleum at least temporarily. Since the funeral Del Guercio has made it clear that he does not oppose use of the mausoleum as Galasso's final resting place, but he does vigorously object to the placement of Galasso's coffin in the particular space it now occupies. Del Guercio's admitted objective is to save that place for himself.
The mausoleum was built by plaintiff's mother. She died intestate in 1937, survived by all four of her children. Two of the four have since died and their bodies are in the mausoleum. It contains a total of 17 burial spaces, eight on the upper level and nine at the lower level. Including the space in which Galasso's coffin has been placed, seven of the eight on the upper level are occupied, and all nine below are empty. Defendant Del Guercio is a widower and his wife's body is in the mausoleum. Directly opposite her resting place is the coffin of Galasso. Defendant desires to occupy that space when his time comes.
It is provided in the rules and regulations of Holy Cross Cemetery that
Under the Statutes of the State and the regulations of the Management of the Cemetery, if the owner of a lot die, making no disposition of his lot by will, the lot of such intestate descends to his "heirs-at-law" -- that is, to the same persons who, by the laws of this State, would inherit any residue of his real estate.
This provision appears to be substantially in accord with N.J.S.A. 8:2-21. It follows that when Galasso died his wife -- the plaintiff -- owned by inheritance from her mother a one-fourth interest in the cemetery plot and the mausoleum erected upon it.
The basic question is whether defendant Del Guercio, as a co-owner with plaintiff, can insist upon his consent being secured as a condition of a lawful burial in the mausoleum for plaintiff's husband. Del Guercio relies upon N.J.S.A. 8:2-24, which reads as follows:
The body of any deceased person or the ashes thereof shall not be interred in any plot or lot in a cemetery owned by a cemetery association incorporated under sections 8:1-1 to 8:1-5 of this Title or under any special act, unless the deceased person had, at the time of his decease, an interest in the plot or lot, or was the relative of some person having such an interest, or was the wife or such person or her relative, except by the consent of all persons having an interest in such plot or lot.
In Friant v. Dolbow , 41 N.J. Super. 84 (Ch. Div. 1956), the statute was construed and applied. It was there held that a co-owner of a cemetery lot, who had failed to get from other co-owners consent to bury her deceased husband in it, had buried him illegally, and at the suit of nonconsenting co-owners disinterment of the body was ordered.
If N.J.S.A. 8:2-24 were applicable to Holy Cross Cemetery, then Friant would be authority for ordering that Galasso's body be moved to a position in the mausoleum to which defendant Del Guercio consents. The power to grant or withhold permission for any burial at all -- if it exists -- must include power to consent on condition that only a place on the lot or in the mausoleum approved by the consenting co-owner be used. However, I am informed that Holy Cross Cemetery is not an incorporated cemetery association. The statute, N.J.S.A. 8:2-24, applies only to a "plot or lot in a cemetery owned by a cemetery association incorporated under sections 8:1-1 to 8:1-5 of this Title or under any special act * * *." The certificate issued to Mrs. Del Guercio senior, on the strength of which the mausoleum was built, shows on its face that it came from the Roman Catholic Archdiocese of Newark, N.J. One of the ...