FOSTER, V. C.
Bill by Frank Dennis against the Glenwood Cemetery and others. Decree in accordance with opinion.
Decree affirmed in 125 Atl. 322.
Wilson & Smock, of Red Bank, for complainant.
Wilbur A. Heisley, of Newark, for defendant Cemetery Ass'n.
John W. Slocum, of Long Branch, for other defendants.
FOSTER, V. C. In the memorandum filed by me in the above matter on February 24, 1923, I requested counsel to give me their views on the method to be embodied in the decree which would provide for the care of the lots heretofore sold for burial purposes, and also for the care of lots hereafter sold, and including the care of the cemetery as a whole, and its general management and development, and which would also provide for the payment of the principal and interest of the bonds owned by complainant and others.
As a result of this request, I have had several conferences and quite some correspondence with counsel, with the result that my suggestion that the initial investment of $1,000 made by each of the seven bondholders should be repaid them from the funds amounting to about $18,000, now in the treasury of the cemetery association, seemed to be acceptable to all parties, with this qualification, viz.: That the $7,000 thus to be paid should be divided among the seven bondholders on account of both principal and interest, so that all would have interest paid therefrom on their respective claims of $3,000 each up to the common date of November 1, 1907.
This payment of $7,000 would have a balance due the bondholders of unpaid principal of $14,000, and accrued interest for 15 years, from November 1, 1907, to November 1, 1922, on the original debt of $21,000, amounting to about $18,900.
At the conferences mentioned, and after consideration of the arguments of counsel, I held the representation made by the cemetery association, to give perpetual care to the lots it had sold, imposed no greater duty than that imposed by section 10 of the Cemetery Act (Comp. St. 1910, p. 376), which directs that 50 per cent. of the proceeds of the sale of lots shall be first applied to the payment of the purchase price of the property, and the remaining 50 per cent. to the care, improvement, and embellishment of the cemetery.
I further held that as the original bondholders, who were also the incorporators, and who were for many years the sole trustees of the cemetery, had ignored their statutory duty and had neglected to pay themselves the amount due them for the price of the property and had likewise neglected to create from the proceeds of lots sold the fund required by the statute for the care of the cemetery; that the equities of the situation required that the care of the cemetery should receive the first consideration, and to accomplish this purpose I have reached the conclusion that the balance of the funds now in the cemetery's treasury (after the payment of the $7,000), and all additions thereto, should be kept intact and invested, and that from the annual income received therefrom, and from the gross receipts of the sale of lots and from any and all other annual income and receipts (except gifts, bequests, and devises) there should be created annually a fund not exceeding $3,000 for the care, management, and development of the cemetery; that from the balance of such gross annual receipts and income, 75 per cent. thereof shall be paid annually on account of the $14,000 balance of principal due the bondholders, until such balance has been paid in full, with legal interest thereon from November 1, 1922, and that thereafter said 75 per cent. shall be paid annually on account of the interest owing to the bondholders on the original debt of $21,000 to November 1, 1922. The remaining 25 per cent. of the annual income and receipts is to be invested and used by the trustees as they determine for the care, improvement, and embellishment of the cemetery.
This litigation is the direct result of the neglect of all parties to it, and therefore no costs can be allowed to either party against the other, and any party has leave to apply at any time for such further relief as the circumstances may require.