Here’s a somewhat spooky curious case about three brothers who sued a cemetery for the right to be buried there.
In 1869, brothers Joseph and Darius Smith purchased the rights to 4 plots at the Cataraqui Cemetary for the sum of $100.00. The purpose of these plots was to be the final resting place for them as well as their family for years to come.
In general, when a person wishes for their remains to be buried or cremated at a cemetery or interred, they purchase the rights to be laid in a plot of land, and not the land itself. Essentially, the person is purchasing the right to be interred in a specific area of the cemetery.
Throughout the years following this purchase, only a handful of Smith family members were buried on this plot, as several members chose to be buried elsewhere. This left a large amount of unused space to be used by future heirs of the Smith family.
Fast forward almost two centuries to 2013, when three brothers, Allan, Carmon, and Marvin Smith, sued the Cataraqui Cemetery for denying their request to be buried in their ancestor’s plot.
According to the current manager, the cemetery had been under different management when it allowed family members to be buried there without proof of being heirs of Joseph and Darius Smith. He states that just because family members were buried there throughout the years does not mean he will allow others to do so as well without first proving their lineage.
The issue here is that since 1869, over 2000 living heirs existed that would have be equally as entitled to a spot in the plot, so to speak.
The Court’s decision on the matter came down to several points:
- The Court looked at the Funeral, Burial and Cremation Services Act (the Act), which came into effect in July of 2012, and replaced the old Cemeteries Act. The Act states that only the interment rights holder has the right to be buried and to decide who is buried in the plots in question. Therefore, the Smith brothers (current) had to prove that they had such a right.
- The Court found on their deed that Darius and Joseph Smith intended the plots to be handed down to their heirs in a broad manner including anyone in the lineage of either brother. Considering the obvious fact that they bought the rights to 64 plots, what did the cemetery believe they intended on doing with them?
- The fact that the cemetery had previously permitted over 20 burials of members of the Smith family without proof that they were interment rights holder was also a factor in the decision.
- Finally, the Court applied the law of estoppel to find that the cemetery’s silence and its acts in permitting other Smith burials without formal proof of interment rights prevents it from now insisting that the applicants prove such rights.