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IN THE COURT OF SPECIAL APPEALS OF MARYLAND

SEPTEMBER TERM, 1995

NO. 1531
 
 

VIRGINIA ELEANOR HUMBRECHT KLINE, et al., Appellants, v.THE GREEN MOUNT CEMETERY, et al., Appellees.
 
 

APPEAL FROM THE CIRCUIT COURT FOR BALTIMORE CITY

(Joseph H.H. Kaplan, Judge)

BRIEF OF APPELLEE GREEN MOUNT CEMETERY

 

Francis J. Gorman
Two North Charles Street
Baltimore, Maryland 21201-3754
(410) 528-0600

Attorneys for Appellee

Table of Contents

Statement Of The Case	1
Questions Presented	2
Statement Of The Facts	4
The 1869 Agreement Between Mary Ann Booth And Green Mount Cemetery	4
Identifications Of Booth As He Escaped From Washington After The Assassination	5
Identifications Of Booth At The Garrett Farm Before And After He Died There	6
Identifications Of Booth And The Autopsy Aboard The Montauk In Washington	8
Identifications From Booth From The Burial In Washington To The 1869 Burial At Green Mount Cemetery	10
Scientific Evidence	12
Argument	14
I. Under Maryland Law, Courts Are Reluctant To Order Disinterment Or Exhumation Without A Showing Of Substantial And Compelling Reasons	14
II. The Evidence Established That There Are Substantial And Compelling Reasons Why John Wilkes Booth's Remains Should Not Be Exhumed	17
A. There Were So Many Positive Identifications Of Booth's Body That The Evidence Is Over- Whelming That John Wilkes Booth Is Buried At Green Mount Cemetery	17
B. Appellants Did Not Produce Substantial Or Credible Evidence To Support Their Escape Theory	19
C. The Scientific Evidence Established That A Positive Identification Of Remains Is Not Possible Or Is Extremely Unlikely	24
1. The Condition Of The Remains Is Uncertain	24
2. The Soil And Water Conditions Are Not Favorable	25
3. No Proven Techniques For Positive Identification Are Available	25
4. The Minimum Time To Have The Remains Out Of The Grave Is Too Long -- Six Weeks And Possibly Longer	27
5. The Unmarked Location Of The Grave Means That The Appellants Are Asking The Court To Order An Impermissible "Archeological Dig" In The Cemetery	27
III. There Is No Legitimate Historical Controversy As To Whether John Wilkes Booth Escaped -- It Is Established That He Did Not Escape	28
A. Six History Experts Testified That John Wilkes Booth Was Killed At The Garrett Farm And Is Buried At Green Mount Cemetery	28
B. The Bates Story That John Wilkes Booth Escaped Is A Fraud	29
C. There Is No Legitimate Historical Controversy As To Whether John Wilkes Booth Escaped	30
IV. Under The Circumstances, Green Mount Cemetery Had A Duty To Participate As A Respondent And To Present Evidence	30
A. Maryland Law Permits A Cemetery To Participate	30
B. Green Mount Cemetery's Fiduciary Duty	32
V. The Circuit Court Did Not Err In Stating That Petitioner Rathbun, As A Next Of Kin, Has A Greater Interest In The Petition Than Petitioner Kline Or The General Public	33
VI. Conclusion	35

 

Table Of Citations

Cases

Dougherty v. Mercantile Safe Deposit & Trust Co., 282 Md. 617, 387 A.2d 244 (1978)	14,15,16
Fish Market Nominee Corp. v. G.A.A., Inc., 337 Md.1, 15 (1994)	35
Gallaher v. Trustees Of The Cherry Hill Methodist Episcopal Church Of Cherry Hill, Inc., 42 Md. App. 186, 399 A.2d 936 (1979)	14,35
Radomer Russ-Pol Unterstitzung Verein v. Posner, 176 Md. 332 4 A.2d 743 (1939)	33
Sacred Heart Of Jesus Pol. National C. Church v. Soklowski, 199 N.W. 81 (Minn. 1924)	31
Urban Site Venture Ii Limited Partnership v. Levering Associates, 340 Md. 223, 665 A.2d 1062 (1995)	14
Walser v. Resthaven Memorial Gardens, Inc., 98 Md. App. 371, 633 A.2d 466 (1993)	17,31
Yome v. Gorman, 242 N.Y. 395, 152 N.E. 126 (1926)	15

 

Books

The Escape And Suicide Of John Wilkes Booth, Finis L. Bates (1907)	1,2
Great American Myth, George S. Bryan (Reprint Edition 1990)	28
The Mad Booths Of Maryland, Stanley Kimmel	22

 

Miscellaneous

22 Am.Jur.2d, Section 70 at 47-48	15
The Law Of Cadavers And Of Burial And Burial Places, P. Jackson, 2nd Ed., 1950	14,16
33 Maryland Rule 8-131(C)	1

 

Statement Of The Case

Green Mount Cemetery submits this statement to correct omissions in the statement submitted by Appellants.

The initial Petition was filed ex parte in the names of Nathaniel Orlowek, Arthur Ben Chitty, Virginia Eleanor Humbrecht Kline, and Lois White Rathbun, in that order. It described Orlowek and Chitty as persons who had been the focus of numerous articles and radio and television programs (e.g., Rolling Stone magazine and Unsolved Mysteries on TV) because of their research into the life and death of John Wilkes Booth. (Petition, paras. 1 and 2). By Order dated November 14, 1994, the ex parte Petition was dismissed with leave to amend to remove Orlowek and Chitty as Petitioners and to name Green Mount Cemetery as a Respondent. The reason alleged for the exhumation request is that a controversy exists as to whether John Wilkes Booth was killed in 1865 or escaped. (Amended Petition, para. 111). The basis for the escape theory is a book written in 1907 by Finis L. Bates entitled "The Escape and Suicide of John Wilkes Booth" which the Amended Petition described as follows:

Many stories concerning the fate of John Wilkes Booth have been reported throughout the years since the events described above. At times, Booth was reported to have been living in Ceylon, India, Mexico, and locations across the American Southwest. But only one story, supported by both physical and eyewitness evidence, has survived through the years with its credibility and persuasiveness in tact. It was in 1872 when a young lawyer practicing in Granbury, Texas, named Finis L. Bates first met John St. Helen....Then, in early 1877, St. Helen thought himself near death. Requesting the presence of Bates at his side, St. Helen informed him: "I am dying. My name is John Wilkes Booth"....

* * *

Finally, in 1903, without warning, Bates received word that a man named David E. George had apparently committed suicide in Enid, Oklahoma....After reviewing the body Bates declared it to be his old friend St. Helen and instructed the mortician to mummify the remains. This mummy was later exhibited throughout the United States during the early decades of the twentieth century bearing the monocle of John Wilkes Booth, assassin of a President. Bates, by now a prominent attorney in Tennessee, published his account of the story in his 1907 book "The Escape and Suicide of John Wilkes Booth."

Amended Petition, paras. 57-64 (Emphasis added).

There was widespread media attention on the day the initial Petition was filed in court (Amended Petition, para. 46). Orlowek was interviewed on Channel 9 television in Washington -- one of numerous media appearances -- holding the Bates book in his hand and saying that it was the Bates book that proved beyond a doubt that Booth escaped. (T. 5/19/95 at 201-202).

Questions Presented

1. Was the Circuit Court clearly erroneous in refusing to order the exhumation of the remains of John Wilkes Booth 126 years after burial where: (a) the "compelling" reason for exhumation was a book that is a fraud; (b) there was no credible or substantial evidence submitted by Appellants justifying exhumation; (c) there was substantial evidence of numerous positive identifications of John Wilkes Booth's body in 1865 when he was killed and in 1869 when he was buried at Green Mount Cemetery; (d) the grave of John Wilkes Booth is unmarked and its exact location is not known; (e) the remains of three infant siblings are reportedly buried on top of John Wilkes Booth; (f) there is an underground stream and water-soaked soil beneath the Booth family lot; (g) there are no available dental records of John Wilkes Booth; (h) any post-exhumation examination would not produce a positive identification and would be inconclusive; and (i) the remains would be out of the grave for a minimum of six weeks, perhaps months, or even longer?

2. Should the wishes and burial arrangements of John Wilkes Booth's immediate family and next of kin in 1869 prevail over the 1995 efforts undertaken by a publicity-seeking history buff and his attorney to cause an exhumation in order to gain media attention and/or financial benefits from television and movie productions?

3. Did the Circuit Court err when it permitted the cemetery which was entrusted with John Wilkes Booth's remains by his mother and his siblings in 1869, and subsequently with the remains of eleven other members of the immediate Booth family, to participate and present evidence where there was no immediate next of kin and the cemetery believed that the exhumation request was without merit and frivolous?

4. Did the Circuit Court err, and was there any prejudice to the Appellants, when the Court stated that, under the civil law method, Appellant Kline is not a next of kin, but that Appellant Rathbun is a next of kin and a proper person to petition for exhumation, where the Court did not in any way limit the evidence submitted by Appellants or their ability and opportunity to do so?

 

Statement of the Facts

The 1869 Agreement Between Mary Ann Booth and Green Mount Cemetery

Appellants' statement of the facts is not based on the testimony or exhibits elicited from any of the sixteen (16) witnesses who testified at the evidentiary hearings. Instead, it is based solely on a stack of newspaper articles about John Wilkes Booth assembled by Appellants' counsel. (T. 5/18/95 at 148-149). Accordingly, Green Mount Cemetery submits this statement of facts based on the testimony and exhibits produced by the witnesses at the hearing.

There is no dispute that John Wilkes Booth shot and killed President Lincoln on April 14, 1865.

Mary Ann Booth, his mother, and Edwin Booth, an older brother, asked President Johnson to turn over Booth's remains to the family for a decent, permanent burial. In early 1869, President Johnson finally granted the request. An undertaker from Baltimore named Weaver came to Washington, disinterred the remains, and took the body to Weaver's establishment in Baltimore. (T. 5/25/95 at 117-118).

In June 1869, Green Mount Cemetery granted and conveyed to Mary Ann Booth lots 9 and 10 in the Dogwood area of the cemetery "for the purpose of sepulture alone, and none other, subject to the provisions of Act of the General Assembly of Maryland, passed at December Session, eighteen hundred and twenty-seven." (Certificate of Ownership, Pets. Ex. B-4; T. 5/19/95 at 228-229). The Act incorporated into the certificate imposes upon Green Mount Cemetery a permanent fiduciary duty to assure protection to the remains buried in the cemetery:

whereas, it seems reasonable and necessary to provide for the permanence of the said establishment [Green Mount Cemetery] so that those who bury there, may be assured of perpetual protection to the remains of relatives and friends, and for the decent preservation of the grounds. (Emphasis added). (See Appendix).

Virginia Eleanor Humbrecht Kline is a first cousin twice removed from John Wilkes Booth. Lois White Rathbun is a great, great, great niece of John Wilkes Booth. (T. 5/17/95 at 7). Appellants concede there is no near or immediate next of kin. Appellants Brief at 13.

Identifications of Booth As He Escaped From Washington After The Assassination

Booth escaped from Washington, through Southern Maryland, and crossed the Potomac River into Virginia. Thousands of posters identifying Booth by picture had been issued and circulated to the troops pursuing him and to the general public.

He was seen by many persons who later identified him. (T. 5/25/95 at 31-34). For example, Willie Jett met Booth and his co-conspirator, David Herold, at the ferry landing at Port Conway, Virginia, and took them to the Garrett Farm. Later, it was Jett who led the federal cavalry that was searching for Booth to the Garrett Farm. (T. 5/25/95 at 33; Ex. 12H).

Identifications of Booth At The Garrett Farm Before And After He Died There

The Garretts permitted Booth and Herold to stay in the barn at their farm. They locked the barn because they thought Booth and Herold would steal their horses, and they kept an eye on them in the barn through the night of April 25, 1865. (T. 5/25/95 at 35-36; Ex. 13A.).

Lt. Edward T. Doherty was in charge of the cavalry unit that arrived at the Garrett Farm at about 3:00 a.m. of April 26, 1865. Doherty's cavalry unit had circulars containing a photograph and a description of Booth. These were available at the farm and used by the soldiers and others when they identified Booth. (T. 5/18/95 at 206). Emory Parady, a private in the cavalry, heard rustling inside the barn and brought that information to Doherty. (T. 5/18/95 at 175).

They were ordered out. Herold came out and surrendered, but Booth stayed inside. He was armed with two revolvers and two knives. The cavalry then set fire to the barn. Booth ran to the middle of the barn and was in the act of raising his carbine when a pistol was fired at him by Sergeant Boston Corbett. The bullet shot Booth through the neck and head. (T. 5/18/95 at 176-177; T. 5/25/95 at 37). Private Parady and Detective Luther Baker rushed into the burning barn and carried out Booth. The letter dated April 28, 1865, written by Private Parady leaves no doubt that it was John Wilkes Booth who was killed at the Garrett Farm. (Ex. 20A; T. 5/18/95 at 175-178, 208).

Herold told Private Millington that it was Booth inside the barn. Herold stated that he had not dared to leave Booth because Booth had threatened to kill him if he did. (T. 5/18/95 at 181).

Richard Garrett confirmed that it was Booth who was in the barn. He described how Booth was positively identified after he was shot. The soldiers and detectives used a printed description of Booth, a photograph of Booth, and some present (Doherty and Baker) had known Booth personally. They proceeded to verify his height, color of eyes, color of hair, and the initials on his right hand in India ink. (T. 5/18/95 at 196-198).

Statements from many of the soldiers who were at Garrett's Farm identifying Booth were admitted into evidence. Doherty, who had been in his company in Washington at the National Hotel, confirmed that it was Booth who had been shot in the barn and died at the Garrett Farm. (T. 5/18/95 at 198-199). Detective Baker identified Booth. (T. 5/25/95 at 40; Ex. 14E). Corporal John Winter, Corporal Herman Neugarten, and Private John Myers also identified Booth. (T. 5/18/95 at 200-205). All of the accounts by those at Garrett's Farm establish that it was John Wilkes Booth who was killed there. (T. 5/18/95 at 171-172).

There was testimony from six expert witnesses that the person who was shot in the barn and who died at the farm was John Wilkes Booth, the assassin of President Lincoln. Professor Baker at 5/18/95 at 128 (the Appellants' expert); Steven Miller at 5/18/95 at 207-209; Professor Hanchett at 5/19/95 at 48-49; Michael Kauffman at 5/25/95 at 31; Professor Alford at 5/25/95 at 97-98; James O. Hall at 5/25/95 at 153-154.

Identifications of Booth and The Autopsy Aboard The MONTAUK in Washington

John Wilkes Booth's body was taken from the Garrett Farm in a wagon, accompanied by a detachment in the charge of Detective Baker. The body was carried to Port Royal, Virginia, and then put on the steamboat JOHN S. IDE on the Potomac River. The steamboat arrived in Washington and the body, still in Baker's custody, was transferred to the MONTAUK, a monitor class iron naval vessel. (T. 5/18/95 at 209).

The purpose of the autopsy on the MONTAUK was to determine the cause of death, but first there was an inquest by Judge Holt to identify the body. There were positive identifications of Booth on board the MONTAUK. (T. 5/25/95 at 101-102). Charles Dawson, a clerk at the National Hotel where Booth had stayed, identified Booth. (T. 5/25/95 at 102-103; Ex. 24). Dr. May, a professor of surgery at University of Maryland, identified Booth's body on board the MONTAUK. (Ex. 23). Dr. May gave a speech in 1887 in which he affirmed again the identity of the body as that of John Wilkes Booth. Ex. 61. Seaton Monroe, a Washington lawyer who had known Booth, came aboard the MONTAUK and positively identified Booth. (Ex. 25). William Crowninshield, an acting master in the Navy and an acquaintance of Booth, identified Booth's body. (Ex. 26). Charles M. Collins, who had known Booth, positively identified Booth. (Ex. 27). (See T. 5/25/95, 101-109). These statements, under oath and contemporaneous, have great significance to historians in terms of credibility and reliability. (See T. 5/25/95 at 109).

There were non-contemporaneous statements identifying Booth from John M. Peddicord (who took a lock of hair from Booth's head) and Joseph Hartley who were both on the MONTAUK. (Exs. 30 and 31). Some visitors on the MONTAUK snipped off locks of Booth's black hair. There was nothing secretive or closed about the presence of Booth's body in Washington aboard the MONTAUK. (T. 5/25/95 at 43-44).

The reports of the autopsy are contained in Ex. 59 and Ex. 60. The formal autopsy report (Ex. 59) met all the legal and medical standards at the time and is about the same length as the autopsy report on President Lincoln himself. The more technical medical autopsy (Ex. 60) was meant to accompany the cervical vertebrae that were removed from Booth's body and taken to the Army Medical Museum. These vertebrae are now part of the collection at the National Museum of Health and Medicine, Armed Forces Institute of Pathology. (T. 5/17/95 at 217-218; T. 5/25/95 at 130).

Identifications of Booth From The Burials In Washington to The 1869 Burial At Green Mount Cemetery

After Booth's body was taken off the MONTAUK, it was taken to a wharf at the Arsenal in Southwest Washington where ammunition was produced during the Civil War. Adjacent to the Arsenal was the former Washington Penitentiary where civilian prisoners had been housed until 1862. The penitentiary area became a warehouse and storage area for the Arsenal. (T. 5/25/95 at 46). Booth's body was buried in a storage room at the penitentiary in the presence of a representative of the War Department. In 1867, Booth's body was disinterred, and he was buried a second time in another storage area in the penitentiary. (T. 5/29/95 at 46, 115; Ex. 22AA).

On February 15, 1869, after President Johnson released the body to the family, Weaver brought Booth's remains to his funeral establishment in Baltimore. (T. 5/25/95 at 115). The Booth family was then living in New York City. On February 16, 1869, Mary Ann Booth, Joseph Booth, and Rosalie Booth, came to the Weaver establishment. Joseph Booth identified his brother's body for the family. (T. 5/25/95 at 116-121).

There were others at Weaver's who also identified Booth's body. Blanche Chatman identified the body. (Ex. 22J). Mrs. Elijah Rogers, a Hartford County neighbor of the Booth family who had known Booth as a young boy, identified the body and took a lock of his hair and gave it to Mrs. Booth. (T. 5/25/95 at 123-126).

On the 18th of February 1869, Booth's remains were deposited in Weaver's private vault at Green Mount Cemetery awaiting warmer weather for digging a grave. Burial occurred in Green Mount Cemetery on June 22, 1869. Booth was an Episcopalian, and the ceremony was conducted by the Reverend Fleming James of Christ Episcopal Church, where Weaver was a sexton. (T. 5/25/95 at 117; Ex. 22H).

Present from the Booth family at the burial were Mary Ann Booth, Edwin Booth, Junius Brutus Booth, and Rosalie Booth. John Wilkes Booth's grave was purposely not marked as a result of the wishes of the family, particularly Edwin Booth. (T. 5/25/95 at 122-124). Other persons present on the day of the funeral identified Booth's body -- particularly an attendant at Weaver's named Mears and a photographer named Lowry. (T. 5/25/95 at 1/22; Ex. 22F).

Letters and books were written by members of Booth's family, all of which confirmed that he had died in 1865. His sister, Asia, wrote a book in 1874 (which was not published until 1938 because it was so affectionate to her brother) that refers to John Wilkes Booth as dead and mentions his grave. (Ex. 22T). A book of letters by Edwin Booth (Ex. 22S) contains a letter written by Edwin in 1881 referring to his brother's "deed" and to his "death." (Ex. 22S). In 1872, Mary Ann Booth applied in New York for letters of administration for the estate of John Wilkes Booth, and she swore that he died in Virginia in 1865. (T. 5/25/95 at 128; Ex. 22V).

Scientific Evidence

The exact location of John Wilkes Booth's grave at Green Mount Cemetery is unknown. (T. 5/18/95 at 38-39). Ground-penetrating radar would only show that there is some sort of object underground that is different from the surrounding soil. It cannot detect the presence of a coffin. (T. 5/18/95 at 48). During the course of the hearing, Judge Kaplan received a telephone call reporting that a descendant of the undertaker, Weaver, has claimed for years that, according to the family history, John Wilkes Booth is not buried in the Booth lot at Green Mount Cemetery but is buried elsewhere in the cemetery in order to prevent desecration. (T. 5/19/95 at 5-6). Pursuant to the Circuit Court's Order, William C. Trimble, Jr., the president of Green Mount Cemetery, spoke to a woman who had married into the Weaver family and who was familiar with the family history. Mr. Trimble reported that she would testify that the family history was that John Wilkes Booth was actually buried in an unmarked grave elsewhere in Green Mount Cemetery other than in the Booth lot. (T. 5/25/95 at 9-10). This testimony was stipulated into evidence, and the Appellants agreed that there was no need to call this woman to testify in person. (T. 5/25/95 at 22-23).

The soil in the Baltimore metropolitan area is acidic and would do serious damage to underground remains. There is an underground stream in the cemetery. (T. 5/18/95 at 61). The water content of the soil also would cause damage to the remains. (T. 5/18/95 at 50). The Booth burial lot is at the bottom of a hilly area and tends to collect water run-off.

In 1968, a grave was dug in the lot next to the Booth lots. There was such a great rush of water into the grave that it was necessary to place an operating pump in the grave until the remains were buried and covered. (T. 5/19/95 at 237-239).

Three scientific witnesses for the Appellants and one for Green Mount Cemetery testified that positive identification of the remains at Green Mount Cemetery is not possible, or is unlikely. (T. 5/18/94 at 44; T. 5/17/95 at 99, 73, 133-134, 196). There would be and could be no DNA testing. (T. 5/17/95 at 183-184). Identification techniques using superimposition (video and/or photographic) are "experimental" and not accepted as competent evidence of identification. (T. 5/18/95 at 70; T. 5/17/95 at 120). Appellants' superimposition expert had never used superimposition to come up with a positive identification. (T. 5/17/95 at 134-135). Appellants' scientific experts testified that they would need at least six weeks, or months, or even longer to examine Booth's remains. (T. 5/17/95 at 137-138, 239).

Argument

This Court reviews the case on both the law and the evidence. This Court must not set aside the judgment of the trial court on the evidence unless "clearly erroneous," and must give due regard to the opportunity of the trial court to judge the credibility of witnesses. This Court also must consider the evidence in the light most favorable to the prevailing party. The issue is not whether the trial judge's conclusions were correct, but whether they were supported by a preponderance of the evidence. Maryland Rule 8-131(c) 1996 Repl. Vol.); Gallaher v. Trustees of the Cherry Hill Methodist Episcopal Church of Cherry Hill, Inc., 42 M.App. 186, 399 A.2d 936 (1979); Urban Site Venture II Limited Partnership v. Levering Associates, 340 Md. 223, 665 A.2d 1062 (1995).

Appellee believes that this appeal has been brought by Appellants in bad faith and without substantial justification.

I. UNDER MARYLAND LAW, COURTS ARE RELUCTANT TO ORDER DISINTERMENT OR EXHUMATION WITHOUT A SHOWING OF SUBSTANTIAL AND COMPELLING REASONS.

Courts are reluctant to disturb the sanctity of the grave because the law generally abhors disinterments. Jackson, The Law of Cadavers and of Burial and Burial Places at 101-105 (2d ed. 1950). In Dougherty v. Mercantile Safe Deposit & Trust Company, 282 Md. 617, 387 A.2d 244 (1978), the Court affirmed the trial court's decision not to permit a disinterment, even though it was the wife who had sought to disinter her deceased husband:

Justice Cardozo stated the proposition rather succinctly: 'The dead are to rest where they have been laid unless reason of substance is brought forward for disturbing their repose.'

282 Md. at 620; 387 A.2d at 246. (citing Yome v. Gorman, 242 N.Y. 395, 152 N.E. 126 (1926)). Where an interment has taken place with the consent of those interested at the time of the burial, the interment is regarded in law as a final sepulture. Dougherty, 282 Md. at 621, 387 A.2d at 246. Maryland law is consistent with general statements of the law disfavoring disinterment:

Owing to considerations of public health and welfare, and respect for the dead and the feelings of the decedents' survivors, courts are generally reluctant to order or sanction the removal of a body after interment.... Thus, courts generally will not order disinterment of remains in the absence of some sort of showing of necessity, or of substantial, compelling, or valid reasons for disinterment.

22 Am.Jur.2d, Section 70 at 47-48 (emphasis added).

Three broad principles emerge with respect to disinterments. First, the presumption is that once a body is decently buried, it should remain undisturbed. Second, respectful disinterments have been considered as private concerns of the immediate family and the cemetery, providing they all agree. Third, if there is disagreement among the immediate next of kin or the cemetery, relief is to be afforded by a court of equity. See Walser v. Resthaven Memorial Gardens, Inc., 98 Md. App. 371, 633 A.2d 466 (1993).

Rights to a dead body exist ordinarily only for purposes of burial and, except with statutory authorizations, for no other purpose. Dougherty, 282 Md. at 620 n. 2, citing Jackson, The Law of Cadavers. Usually, it is the spouse or the parents who have the paramount right to the possession of a dead body and to decide the place of sepulture. After burial, the body is subject to the control of a court of equity:

[W]hen the duty to furnish proper burial has been discharged, the right of custody ceases and the body is thereafter in the custody of law and disinterment or disturbance of the body is subject to the control of a court of equity.

Dougherty, 282 Md. at 620. See also Walser v. Resthaven, 98 Md. App. 371, 382, 633 A.2d 466, 471 (1993). Thus, the issue for the Circuit Court was whether there was a substantial reason for the exhumation of the remains of John Wilkes Booth.

The factors considered by a court of equity are the wishes of the deceased, the wishes of the next of kin if near enough to have their wishes respected, and the agreement of the cemetery:

Aside from cases of public necessity, the opinions of courts generally regard the factors as controlling in the order of their importance to be, (1) the wishes of the deceased, when they can be ascertained, and in connection with this, the influence of his religious faith in the decision or request; (2) the wishes of the widow or widower, and next after them, the next of kin, if near enough to have their wishes respected; (3) the agreement or regulations of the body maintaining the cemetery.

Radomer Russ-Pol Unterstitzung Verein v. Posner, 176 Md. 332, 338-339, 4 A.2d 743, 746 (1939). See also Walser, 98 Md. App. at 381-82, 633 A.2d at 471.

In this case, no substantial reason for disinterment or exhumation of the remains of John Wilkes Booth was presented to, or found by, the Circuit Court.

Appellants began these proceedings relying on the Bates story as the "only" credible and persuasive basis for disinterment. (Amended Petition, para. 57). During the hearings and on appeal, the Appellants backed off from the Bates story, presumably because it is a fraud that cannot sustain scrutiny.

Appellants then presented random tidbits of information and anecdotes to support an exhumation. Even these items presented by Orlowek were shown to be false or unreliable. In short, as the Circuit Court concluded, Appellants' evidence that John Wilkes Booth escaped from the Garrett Farm was unreliable, less than convincing, and not a "reason of substance" for ordering an exhumation.

II. THE EVIDENCE ESTABLISHED THAT THERE ARE SUB-STANTIAL AND COMPELLING REASONS WHY JOHN WILKES BOOTH'S REMAINS SHOULD NOT BE EXHUMED

A. There Were So Many Positive Identifications of Booth's Body That The Evidence Is Overwhelming That John Wilkes Booth Is Buried At Green Mount Cemetery.

Three different groups of people made separate identifications of Booth's body at different points in time. Three witnesses, who have extensively researched whether John Wilkes Booth escaped, detailed for the Court the numerous positive identifications of John Wilkes Booth's body made from the time he was shot in the barn at Garrett's Farm until he was laid to rest in Green Mount Cemetery on June 22, 1869: (1) Michael W. Kauffman described the identifications made of John Wilkes Booth as he escaped from Washington into Virginia and placed Booth in the barn at the Garrett Farm at the time the cavalry arrived (T. 5/25/95 at 30-43); (2) Steven G. Miller has specialized in the identifications that were made at the Garrett Farm by the soldiers, the detectives, and members of the Garrett family (T. 5/18/95 at 163-250); and (3) Professor Terry Alford described in the identifications that were made of the body from John Wilkes Booth's death at the Garrett Farm to his burial at Green Mount Cemetery in 1869. (T. 5/25/95 at 100-131).

The field identifications at Garrett Farm were made by the soldiers and detectives using a written description of Booth, a photograph of Booth, and identifications by two persons present who knew Booth -- Lt. Doherty and David Herold. These identifications were supported by the possessions found on the body, the physical characteristics of the man, and the initials "JWB" on his hand. Willie Jett, who had led the cavalry unit to Booth, was present and saw the identifications that were made of Booth. (See Miller testimony, T. 5/18/95 at 174-207).

This evidence of the many identifications of Booth's body is summarized in the Appellee's statement of facts and in the Circuit Court's Memorandum Opinion and Order at 11-12.

B. Appellants Did Not Produce Substantial or Credible Evidence to Support Their Escape Theory

On what evidence do Appellants rely to attempt to make a showing of a substantial reason for exhumation? It is not the Bates book or anything said by Wilson Kenzie or William C. Allen about the hair color of the man killed at the Garrett Farm. Appellants admitted these sources are of "very questionable validity" (T. 5/19/95 at 87, 193-194, 196), though Appellants had presented this to the Court in their Amended Petition.

Appellants contend on this appeal that they presented a "more narrow" basis for their escape theory. Appellants' Brief at 34 n. 22. Nathaniel Orlowek was the only witness who testified that John Wilkes Booth escaped, and he testified about the following items as support for his position:

- the 1925 statement of John P. Simonton (T. 5/19/95 at 88-92);

- the statement attributed to Basil Moxley in the June 6, 1903 edition of the Baltimore News American (T. 5/19/95 at 118);

- Orlowek's interpretation of the statement given by William Garrett (T. 5/19/95 at 108);
 
 

- the reward money received by the soldiers and officers (T 5/19/95 at 112);

- some persons who came onboard the MONTAUK did not know John Wilkes Booth (T. 5/19/95 at 113-114);

- Orlowek's interpretation of Dr. John F. Mays' statement (T. 5/19/95 at 114-115);

- Joseph Booth did not view his brother's body (T. 5/19/95 at 119-120);

- William Pegram said the body had only one tooth filling while Booth's Washington dentist said that two teeth had been filled (T. 5/19/95 at 121-123);

- Pegram said that a "manufactured shoe" was on John Wilkes Booth's left leg when he saw the body in 1869 (T. 5/19/95 at 123-124);

- the Bates photograph of David George is John Wilkes Booth (T. 5/19/95 at 129); and

- the 1931 autopsy of the mummy (T. 5/19/95 at 126).

None of these items, either individually or collectively, rise to the level of a substantial reason for an exhumation to verify the many positive identifications of Booth. Each is a fruit of the Bates fraud. Furthermore, the interpretation given by Orlowek to each of these items was contradicted by other evidence or the source was shown to be unreliable. It was the Circuit Court's province to determine what evidence was credible and what weight to give to the testimony.

Dr. May's Statement. Orlowek contended that Dr. Mays' mention of freckles and Booth's aging showed that the body Dr. May examined was not John Wilkes Booth. Professor Alford testified that Dr. May confirmed his 1865 identification in a written speech which Dr. May delivered in 1887, thus dispelling any doubts of the kind raised by Orlowek. (T. 5/25/95 at 131-132).

Statement of William Garrett. Orlowek claimed that the statement of William Garrett shows confusion about who were the two men who returned from the woods on the evening of April 25, 1865. Bates also made this same claim in his book. Ex. 20L is a statement in a 1907 letter from Reverend Richard Garrett contradicting the claim that the Garretts were confused as to whether the same man came back from the woods that evening:

Did he think us such a set of fools that we would not know a man in broad daylight that we had been entertaining for two days?

(T. 5/18/95 at 196-197).

Basil Moxley's Newspaper Interview. Moxley was a pallbearer at Booth's funeral in 1869. Orlowek admitted on cross-examination that when Moxley learned of the statement that had been attributed to him in the News American, the very next day he gave an interview to the Baltimore Sun, denied he made any statement about a mock funeral, and stated that he would never have said such a thing. (T. 5/19/95 at 149).

Pegram and The Dental Testimony. Orlowek admitted on cross-examination that Pegram wrote an article in 1913 that was published in the Maryland Historical Magazine in which Pegram stated that the body he examined with Weaver in Washington in February of 1896 was to his knowledge the body of John Wilkes Booth. (T. 5/19/95 at 153-156; Ex. 50). There are no dental records available with respect to John Wilkes Booth. (T. 5/19/95 at 153).

Pegram And The Left Shoe. A man named Stanley Kimmel, author of a book entitled The Mad Booths of Maryland, attributed to Pegram a statement that there was a manufactured shoe on Booth's left foot. Orlowek admitted on cross-examination that Booth had put a shoe on his left foot after Dr. Mudd had cut off his boot and that it was possible that someone could have misunderstood the reference to a shoe to have been referring to Booth's original boot. (T. 5/19/95 at 157-158).

The 1903 Photograph of David George. Even though Orlowek disavowed the Bates book as not credible (T. 5/19/95 at 125), he testified that the Bates 1903 photograph of the dead David George bore a resemblance to John Wilkes Booth. (T. 5/19/95 at 125-130). Other witnesses, however, testified that the photograph was doctored and a fraud. (T. 5/19/95 at 293-304). In addition, Judge Kaplan and Mr. Kauffman compared Booth's features in photographs -- his widow's peak, the size of his hands -- with the 1903 photograph of George, concluding that they were obviously not the same person:

THE COURT: If you look at the hairline of John Wilkes Booth where he has sort of a widows peak, what they call a widows peak. When you look at that of the corpse of George, you'll see that, that George has hair in the area where Wilkes Booth does not. And usually as you get older, you lose hair, you don't gain it on, on your head anyway. And there is more hair towards his forehead than, than John Wilkes Booth Does.

His hands, John Wilkes Booth's hands are smaller than George's, they just are. And if you look at his eye expression, it's not the same. The stand between his eyes is different. Though we all gain a little weight with age, well, most of us do anyway. Their, their body structure is, is not the same. Though George is dressed up to look like John Wilkes Booth. He's got a bow tie and, and the outfit. And his, his eyebrows are, are made to look --

THE WITNESS: Your Honor, as we will hear later one of the, one of the other witnesses will tell that the embalmer gave a newspaper interview in which he said that Mr. Bates kept insisting he color the hair and do everything else he could to make it look like John Wilkes Booth.

(T. 5/19/95 at 300-301). Bates doctored photographs (tintypes) to bolster his story that David George was John Wilkes Booth. However, Bates forgot that he was dealing with a tintype which is a reverse image, thereby placing the injury above the wrong eye. (T. 5/19/95 at 304-305).

The 1925 Statement of John Simonton. Orlowek acknowledged that Simonton wrote a letter in 1898 to Bates in which he stated there was evidence that proved beyond a doubt that Booth was killed at the Garrett Farm.

Reward Money. Just because a person received reward money does not mean that his statements were untrue or inaccurate. Furthermore, Dr. May, Charles Dawson, and William Crowninshield received no reward money, but each identified Booth's body.

Smith, Gardner, and O'Sullivan. John L. Smith was a federal detective; Alexander Gardner was a photographer; Timothy O'Sullivan was Gardner's assistant. No one claims they identified Booth's body, and their presence on the MONTAUK proves nothing.

Joseph Booth Did Not View His Brother's Body. It was reported that Joseph Booth identified his brother's body. (T. 5/25/95 at 116). That Joseph view the body was confirmed by a friend named Whitney in 1903.

The 1931 Autopsy of The Mummy. Bates' story is that he lost touch with John St. Helen, but that in 1903 he read about a man who had committed suicide in Enid, Oklahoma claiming that he was John Wilkes Booth. Bates went to Oklahoma, claimed the body, and asserted that David George was St. Helen, who was Booth. Bates had the corpse mummified and allowed it to travel around as a circus side show. The 1931 autopsy of the mummy was a publicity stunt. The report does not identify the mummy as that of the body of John Wilkes Booth. There is no mention in the report of the initials JWB on the right hand and nothing about a scar on the back of the neck. (T. 5/25/95 at 55-56).

C. The Scientific Evidence Established That a Positive Identification of Remains Is Not Possible or Is Extremely Unlikely.

1. The Condition of the Remains is Uncertain.

The scientific witnesses were uncertain about what the condition of Booth's remains would be and whether they would permit any kind of meaningful examination. Dr. Ubelaker testified that "it is difficult to predict what the condition of the skeleton would be." (T. 5/17/95 at 117, 120). Professor Starrs testified:

No one knows for sure as to what the condition of the remains will be. . .because there are so many variable factors. (T. 5/18/95 at 60).

2. The Soil And Water Conditions Are Not Favorable

The Booth burial plot is at the bottom of a hilly area in the cemetery. The soil in the area is acidic, and this plus water is very damaging to remains. There was water in a grave dug in the lot immediately adjacent to the Booth family lots. (T. 5/18/95 at 49-50, 56; T. 5/19/95 at 237-239).

3. No Proven Techniques For Positive Identification Are Available.

Appellants represented to the Court that advancements in science and technology, particularly DNA testing and comparison, were reasons to permit the exhumation of the remains of John Wilkes Booth. (Amended Petition paras. 49, 105). Appellants also stated that video and photographic superimposition would be used to identify the remains. (Amended Petition, Para. 105).

The evidence at the hearing, however, established that no DNA testing could or would be done on the remains and that video or photographic superimposition was "experimental" and not a reliable technique to make a positive identification of remains. With respect to DNA, Dr. Smialek that there would be no DNA testing because there are no known matrilineal descendants with whom any DNA that might be obtainable from the remains could be compared. (T. 5/17/95 at 184). With respect to a video or photographic superimposition, only one of Petitioners' scientific experts was familiar with superimposition. He admitted that the technique is experimental:

Q. Now, Doctor, would you agree with me that superimposition, you call it computer-assisted photographic or video graphic superimposition. Would you agree that that is still in an experimental stage?

A. I would agree that in like all of our techniques we would benefit from a considerable amount of additional research. To that extent, it continues to be experimental.

(T. 5/17/95 at 120). Professor Starrs also testified that superimposition is "clearly experimental in nature." (T. 5/18/95 at 69-70).

This Court might wonder how this important evidence on the lack of DNA testing and the unreliability of superimposition -- contrary to the representations in the Amended Petition -- would have been brought to the attention of the Circuit Court had the exhumation proceedings taken place ex parte, without a hearing, and without evidence from witnesses called by Green Mount Cemetery.

Finally, Appellants' lead scientific witness, Dr. Ubelaker, testified that it was unlikely that an exhumation would produce a positive identification:

I also think it is unlikely that that will result in what we would consider to be a positive identification. (T. 5/17/95 at 133).

4. The Minimum Time To Have The Remains Out of The Grave Is Too Long -- Six Weeks and Possibly Longer

Appellants' scientific witnesses testified that they would need to have the Booth remains for a minimum of six weeks or even months. (T. 5/17/95 at 137-138; Pets. Ex. L-1). Other scientific witnesses could not commit to any definite time as to how long Booth's remains would be out of the grave. (T. 5/17/95 at 179, 239).

There were comparisons by Appellants to the exhumations of Lee Harvey Oswald and President Zachary Taylor, but these comparisons prove why Booth's remains should not be exhumed. Oswald's body was out of the grave no more than ten hours, and President Taylor's body was out of the grave for just a few hours. (T. 5/19/95 at 28, 40). Yet, Appellants' witnesses testified an examination of Booth's remains would take six weeks minimum.

5. The Unmarked Location of The Grave Means That The Appellants Are Asking The Court To Order An Impermissible "Archeological Dig" In The Cemetery.

Because of the wishes of the Booth family in 1869, the grave of John Wilkes Booth was unmarked. (T. 5/19/95 at 231-232; T. 5/25/95 at 8-9, 122; T. 5/18/95 at 63-64). It has been the understanding of Green Mount Cemetery that he is buried in an unmarked grave in the Booth lot. (T. 5/19/95 at 231). In addition, a casket containing three infant siblings was buried on top of him.

Professor Starrs testified that any exhumation order would be an "archeological dig":

In this case as I understand the facts, there is no known location at Green Mount Cemetery which is designated and known to be that of John Wilkes Booth. It will involve as Doug Ubelaker testified yesterday essentially an archeological dig where there will be other persons whose remains may well be exhumed at the same time. Not only children, but other persons of an adult nature which, who are resident of the same location in unmarked graves. So that would be in my view an archeological dig and not an exhumation. (T. 5/18/95 at 39-40).

III. THERE IS NO LEGITIMATE HISTORICAL CONTROVERSY AS TO WHETHER JOHN WILKES BOOTH ESCAPED -- IT IS ESTABLISHED THAT HE DID NOT ESCAPE.

A. Six History Experts Testified That John Wilkes Booth Was Killed at the Garrett Farm And Is Buried At Green Mount Cemetery.

Six of the history experts testified that the person killed at the Garrett Farm on April 26, 1865 was John Wilkes Booth, the assassin of President Lincoln. See Statement of Facts, supra. In addition to the record developed in this case, George S. Bryan's Great American Myth, published in 1940, discusses the many identifications and removes all possible doubt that someone other than Booth is buried at Green Mount Cemetery. See Great American Myth (Reprint Edition, Americana, 1990) at 268-313.

Professor Hanchett was acclaimed an authority on Lincoln's assassination by Appellants' witness, Professor Baker. He considers it to be an impossibility that Booth escaped. He could not see any reason to justify an exhumation of Booth's remains because Booth's body was identified so many times by so many different people that it is inconceivable that there could be any doubt as to who is buried in his grave. He testified there have been as many Booth sightings as Elvis sightings. (T. 5/19/95 at 52).

B. The Bates Story That John Wilkes Booth Escaped Is A Fraud

All of the witnesses who gave historical evidence hold the opinion that it was John Wilkes Booth, the assassination of President Lincoln, who was shot and killed at the Garrett Farm on April 26, 1865 except Nathaniel Orlowek who believes that it is "likely" that Booth escaped. Even though the Appellants at the hearing backed away from reliance on the Bates book, and now disavow it, the issue goes to their credibility and good faith.

Expert witnesses, when asked if the Bates book was reliable and truthful, testified that the Bates book was a fraud and not history at all:

A. I have no trouble at all stating that the book is a calculated deliberate fraud (T. 5/19/95 at 288- Kauffman). (Emphasis added).

* * *

A. It cannot, it cannot be relied upon, absolutely not. (T. 5/25/95 at 133-Alford).

* * *

A. Your Honor, it's not to be relied on. It's mostly folklore. . . .I'd call it a fraud. (T. 5/25/95 at 157-James O. Hall).

C. There Is No Legitimate Historical Controversy As To Whether John Wilkes Booth Escaped

Finally, there is no legitimate historical controversy. The Circuit Court heard the opinions of five history experts each of whom testified that there was no legitimate historical controversy as to whether John Wilkes Booth escaped: Miller at T. 5/18/95 at 207-208; Hanchett at T. 5/19/95 at 50-52; Kauffman at T. 5/25/95 at 49; T. Alford at 5/25/95 at 134-135; Hall at T. 5/25/95 at 166-167).

IV. UNDER THE CIRCUMSTANCES, GREEN MOUNT CEMETERY HAD A DUTY TO PARTICIPATE AS A RESPONDENT AND TO PRESENT EVIDENCE.

A. Maryland Law Permits A Cemetery To Participate

Maryland court decisions have recognized that where a disinterment or an exhumation is sought, a cemetery has standing to be heard. The most pertinent Maryland decision is Radomer Russ-Pol Unterstitzung Verein v. Posner, 176 Md. 332, 4 A.2d 743 (1939). A reading of the case makes clear that both the Circuit Court and the Court of Appeals permitted the cemetery to participate actively in the proceedings. The court held that a contested disinterment should not be disposed of by peremptory proceedings (comparable to ex parte proceedings), but that evidence should be presented to the court so that justice is served. 176 Md. at 339, 4 A.2d at 747. This is exactly the course followed by the Circuit Court in this case.

Maryland court decisions anticipate that there may be disagreements between a deceased's relative and the cemetery as to disinterments or exhumations. In Walser v. Resthaven, the court stated that any disagreements among the family "or the cemetery" as to a contemplated disinterment should be presented to a court for decision.

Appellants argue that cemeteries possess only limited standing to participate in an exhumation request. The many cases cited in Appellants' Brief, however, do not support this proposition. To the contrary, the cases cited by Appellants prove that cemeteries do, in fact, participate in the proceedings. None of the cases cited by the Appellants state or hold that a cemetery is limited in the evidence it can present in order to assist the Court in arriving at a just and proper decision.

One court decision not cited by Appellants is Sacred Heart of Jesus Polish National Catholic Church v. Soklowski, 199 N.W. 81 (Minn. 1924), in which a cemetery initiated a suit against a spouse to prevent disinterment of her deceased husband, based on the cemetery's view of the deceased's burial wishes. The court held that the cemetery had the right to maintain such an action, 199 N.W. at 82, even though it ruled against the cemetery. See also the letter dated May 3, 1995 from The American Cemetery Association. ("In this situation [the Booth exhumation request], it would certainly seem appropriate for the cemetery to be involved and to be heard before the court.") R. at .

If Green Mount Cemetery had not presented evidence to the Court, an unjust and scandalous result would have ensued. It is not reasonable to expect a busy circuit court judge to ferret out, on his own, the misrepresentations that were contained in this Petition and Amended Petition.

B. Green Mount Cemetery's Fiduciary Duty

Green Mount Cemetery's position from the outset has been that, pursuant to the 1869 agreement with Mary Ann Booth and its statutory obligations, it was entrusted with the remains of John Wilkes Booth and with the remains of other members of the Booth family. Green Mount Cemetery participated in the Circuit Court proceedings fully mindful of its fiduciary position of trust with respect to the Booth family to allow the deceased to repose undisturbed and to rest in peace. Beyond this, Green Mount Cemetery participated to ensure that substantial, credible, and objective evidence was presented to the Court.

The trust obligation of a cemetery to those who buried relatives at the cemetery has been recognized in legal texts dealing with burial:

There are cases where all the next of kin support an application to remove a body and no voice is heard in opposition but that of the entity owning the cemetery. While the owner of the ground has interest in such a controversy, it has no rights of its own to assert. Whatever contentions it may make are those it advances representing the decedent, for whom it might be said to speak, as the custodian of the body in trust, or repre-senting the lot owner.

P. Jackson, The Law of Cadavers and of Burial and Burial Places,

2nd Ed., 1950, at 118 (emphasis added).

Finally, Appellants were in no way limited by Green Mount Cemetery's participation. The Circuit Court did not in any way restrict or limit the witnesses or the evidence that Appellants could present in support of their position. Appellants should not be permitted to mask the lack of credible evidence supporting the exhumation request by complaining that the Court heard evidence presented by Green Mount Cemetery.

V. THE CIRCUIT COURT DID NOT ERR IN STATING THAT PETITIONER RATHBUN, AS A NEXT OF KIN, HAS A GREATER INTEREST IN THE PETITION THAN PETITIONER KLINE OR THE GENERAL PUBLIC.

Maryland law is clear that among relatives it is next of kin who have an interest in a disinterment or exhumation proceeding. Radomer, 176 at 339-340, 4 A.2d at 747:

The fact that the Samuels Posner are brother and nephew of Max Posner gives them no right to intervene in this case, because they are not the next of kin, and have no interest in the subject matter of this proceeding.

In this case, there are no "near" or immediate next of kin whose wishes should be respected. This is due to the passage of time. Mrs. Kline is not a next of kin; she is a first cousin, twice removed -- six degrees in fact. Mrs. Rathbun, a next of kin, is too remote in time -- a great, great, great niece -- to cause a court to order an exhumation. Only near or immediate next of kin are entitled to have their wishes for disinterment respected by the court:

the wishes of the widow or widower, and next after them, the next of kin, if near enough to have their wishes respected.

Radomer, 176 Md. at 338, 4 A.2d at 746 (emphasis added).

Even the request of a widow or widower, or immediate next of kin, may not justify an order of disinterment. The remains of the dead will not be disturbed without an order of a court of equity after consideration of all of the factors required by the law. Radomer, 176 Md. at 337, 4 A.2d at 746.

Petitioner Kline was not dismissed as a Petitioner; instead the Circuit Court simply noted her more distant interest. Kline claims a one-third interest in the Booth plot, but she could not produce the original certificate because her sister would not release it. (T. 5/17/95 at 30-31). In any event, title is only one factor to be considered by the Court. Gallaher, 42 Md. App. at 194, 399 A.2d at 941.

There is no way that the Circuit Court's finding caused any prejudice. It in no way impacted on the Appellants' presentation of witnesses and evidence or their opportunity to do so. To the extent Maryland law requires a next of kin to seek an exhumation, the Court found such standing in Petitioner Rathbun. Thus, assuming arguendo that there was error -- which there was not -- any error would be considered harmless. Fish Market Nominee Corp. v. G.A.A., Inc., 337 Md. 1, 15, 650 A.2d 705, 711 (1994).

VI. CONCLUSION

Appellee Green Mount Cemetery prays that the Court of Special Appeals affirm the Circuit Court's Memorandum Opinion and Order, and permit John Wilkes Booth to rest in peace, despite his dastardly deed.

Francis J. Gorman, P.C.
Gorman & Williams
Two North Charles Street
Baltimore, Maryland 21201

(410) 528-0600

Dated: March 12, 1996 Attorneys for Appellee

 

APPENDIX

CITATION AND TEXT OF PERTINENT STATUTES

An Act to Incorporate the Proprietors of the Green Mount Cemetery, passed March 15, 1838:

WHEREAS, several citizens of Baltimore in this State, hereinafter named, have associated for the purpose of establishing a cemetery at Green Mount, the seat of the late Robert Oliver, situated in the northernmost portion of said city, containing about ninety-six acres of land: and whereas, they have purchased the said estate for the purpose of appropriating about sixty contiguous acres of the same to the purposes exclusively of a public cemetery; and whereas, it seems reasonable and necessary to provide for the permanence of the said establishment so that those who bury there, may be assured of perpetual protection to the remains of relatives and friends, and for the decent preservation of the grounds.