The opinion
Mr. Justice Stone,
specially concurring:
I concur in the holding of the majority opinion that appellant cannot, in this case, charge appellee with the accumulated cost of grass cutting on his lot. It is apparent from the testimony of appellant’s vice-president, that, until 1922, no such charge was made and this, in my opinion, prevents such recovery now.
I cannot concur, however, in the construction placed .by the majority opinion on the amendment to appellant’s charter in 1863. Section 2 of that amendment requires that the $100,000 fund therein provided for shall be used “for preserving, maintaining and ornamenting the grounds, lots, walks, shrubbery, memorials, boundaries, structures, and all other things in and about said cemetery, and belonging to said corporation, so that the purpose and intention shall be carried out and so that said grounds shall be and continue as cemetery grounds forever.” This section includes “lots” but all things enumerated therein are, to me, plainly limited to those owned by the corporation. This is evidenced by the language “and belonging to said corporation.” Lots sold do not come within that category. The part of the purchase price paid by appellee’s predecessor in title which was sequestered, went into the $100,000 fund.
These considerations, together with the fact that under the stipulations in the original deed, made after the amendment of 1863, that the purchaser shall keep the lot from becoming unsightly, show that it was not the understanding of the parties that section 2 of the 1863 amendment to appellant’s charter requires that the cemetery corporation shall use that fund to cut the grass on lots which it had sold, and, in my opinion, the language of the amendment of 1863 does not justify such a construction.