Real Property. Law of Cadavers. Ancient deed “excepted” a cemetery plot in fee simple, and did not merely “reserve” an easement. New owner had no right to bury parents in old cemetary.

 In re Guite, 2011 VT 58 (Dooley, J.)  

This case concerns the use of a hilltop cemetery on a farm in Hartland, Vermont.  The petitioner claims that the cemetery plot is owned by heirs of the Aldrich family, who settled the property as a farm in approximately 1775 and remained there until selling the farm in 1853.  Respondent purchased the farm property in 1950 and buried the cremated remains of his parents in the hilltop cemetery.  Respondent claims that the Aldrich family reserved only an easement in the cemetery plot, so that he could use it to bury his parents and the remains cannot be moved.  The trial court adopted respondent’s theory and denied the petition.  We conclude that petitioner’s theory is correct and reverse.

In Harding, we ruled that where we could not ascertain the true intent of the parties to the original deed, and in the absence of a “clearer expression of intent,” we would rely upon the common law of family gravesites, which creates an easement.  2005 VT 24, ¶ 18.  The deed in this case contains the necessary clearer expression of intent.  

The 1853 deed in this case has excepted from the conveyance a fee interest in a particular plot of land, rather than a burial easement as recognized at common law.  The plot is excepted “out of the above described premises.”  The terms “excepting” and “exception” are generally used to withhold from a grant or conveyance something that would otherwise pass in the grant.   This technical meaning of the words “excepting” and “exception” dates back to the era of the 1853 deed. see P. Jackson, The Law of Cadavers 219 (1936) (distinguishing “exception” from “reservation” and noting that “the scrivener’s choice of terms is given appropriate but not conclusive weight”). Importantly, the grantor retained an ascertainable tract of land, with the burial plot description being used to locate where the tract is to be found.

Accordingly, we find that the 1853 deed excepted from its grant the 41’ by 27’ burial plot, and the plot is owned in fee simple by the heirs of the Aldrich family.  Thus, it was never owned by the King family, and they had no right to bury the cremated remains in it.