Green v. Danahy

Crosby, J.

The certificate which was delivered to the plaintiff by the defendant states that the right “is granted to him and the Roman Catholic members of his family to bury in Lot No. 223, Sec. A. in St. Mary’s Catholic Cemetery, Needham, Mass., subject always to the following regulations, or such others as may be from time to time prescribed in relation to burials in the said Cemetery.” Then follow several provisions, some of which relate to occupancy of the lot and others concern the manner in which interments shall be made therein. Paragraph 2 of the certificate also states that “It is to be expressly understood that this Certificate is not a conveyance of real estate, not does it confer any right to sell or transfer the Lot herein mentioned.”

• ■ The right which the plaintiff received under this certificate was merely a right of burial. It was merely a license or privilege of burial, and the terms upon which it could be exercised were subject to such reasonable rules and regulations as the defendant should from time to time impose. McCrea v. Marsh, 12 Gray, 211. Burton v. Scherpf, 1 Allen, 133. Sohier v. Trinity Church, 109 Mass. 1. Dwenger v. Geary, 113 Ind. 106. McGuire v. St. Patrick’s Cathedral, 54 Hun, 207. 6 Cyc. 711, 717, 718, 719.

The provision in the certificate that it is granted subject to the regulations therein contained and "such others as may be from time to time prescribed in relation to burials in the said Cemetery” authorized the imposition of regulations in addition to those expressly stated in the certificate, and such regulations properly might be in writing or orally communicated when the certificate was issued, and the consideration was paid therefor. The rule that parol evidence is not admissible to alter, vary or control a contract in writing is not applicable to such an instrument, the express language of which authorized alterations and variations from time to time. See North Packing & Provision Co. v. Lynch, 196 Mass. 204.

The judge of the Superior Court, before whom the case was heard, found that just before the agreement for the issuance of the certificate to the plaintiff had been completed, and while the parties were in the cemetery and the plaintiff was mating a choice of lots, the defendant stated to the plaintiff in substance, “that the plaintiff must assume the duty of grading and caring for the lot that he purchased and if- he failed to perform that duty the defendant would have recourse to drastic measures which might go so far as to cause the removal of the remains that had been interred in it; that the price of the lot was made very low because of this burden that was imposed upon the purchaser.”

The judge further found “that the plaintiff did not object to these conditions and impliedly assented to them . . .; that the said certificate did not and was not intended to contain all the terms of the contract but was a mere memorandum and that the oral conditions as to care and grading formed a part of the consideration of the contract and were binding upon the plaintiff.”

The judge also found “that the plaintiff neither graded nor cared for the lot in question at any time, but permitted it to remain in a rough, unimproved condition and allowed grass, weeds, and brush to grow wild upon it, so that its appearance became unsightly, unkempt and neglected and not in conformity with the other adjoining parts of the cemetery.”

The certificate was issued to the plaintiff in November, 1902, soon after which the body of the plaintiff’s mother was buried in the lot. The judge found that about two years later the defendant sent by mail a letter directed to the plaintiff, in which he (the defendant) requested the plaintiff “to clear the lot and care for it or the defendant might be compelled to remove the remains of the plaintiff’s mother .. . and that about two years thereafter [¡the defendant] sent him [¡the plaintiff] another letter by mail of like tenor, but the defendant did not receive a reply to either.” The judge found that the plaintiff did not receive either of these letters.

In 1912 the defendant caused the remains of the plaintiff’s mother to be removed from the lot and to be buried in another part of the cemetery, but without the knowledge or consent of the plaintiff. It is for the removal of the remains of his mother from the lot that the plaintiff seeks redress in this suit.

The case at bar is clearly distinguishable from Meagher v. Driscoll, 99 Mass. 281. In that case the written instrument under which the plaintiff claimed a right of burial conferred a right to the exclusive occupation of a particular lot with habendum to the plaintiff and his heirs and assigns.

The evidence of the conversation between the parties when the certificate was issued, wherein the plaintiff agreed to grade and care for the lot, was properly admitted.

The entire evidence having been reported, we do not perceive any error in the admission or exclusion of evidence, nor are we able to say that the findings of the trial judge or his order dismissing the bill were clearly wrong. Therefore the entry must be

Decree affirmed.