Mandel v. Cemetery Board

PEEK, J.

Appellants Sidney Handel, A. S. Glikbarg and Henry Kawin, Trustees of the Endowment Care Fund of Belmont Hemorial Park Corporation of California, a nonprofit cemetery corporation, petitioned the Superior Court of Sacramento County for a writ of mandate to compel the respondent Cemetery Board to rescind its order requiring them to reinvest money from the endowment fund of the corporation, presently on loan to Belmont Associates, Ltd., and secured by a first deed of trust on real property. They now appeal from the order of the trial court denying said petition.

The facts, which are not in dispute, show that Belmont Cemetery Association was organized in 1926 as a corporation for the purpose of operating and selling ground for the interment of human remains. The cemetery is located in the city of Fresno and is improved; that is, it is presently ready to be used for the purpose above mentioned. Since its organization the association has been and is a cemetery authority, as defined in section 7018 of the Health and Safety Code, and is an endowment care cemetery, as defined by section 8738 of that code.

[585]

On September 29, 1955, Harry Groman, for the sum of $10,000 obtained an option to purchase all of the 1,000 shares of the cemetery association's stock. On November 28, 1955, Groman, acting for himself and as agent for the K. G. & Co., a copartnership, Desser & Garfield, a copartnership, Edward Rothschild, Robert Brilliant, Leo Strassburg, Meyer Pritkin, and Arthur Gilbert (hereinafter referred to as Group A), pursuant to a previous agreement dated November 23, 1955, exercised said option with the payment of the additional sum of $400,000.

In the early part of 1956, the cemetery association, by charter amendment, changed its name to the Belmont Cemetery Corporation and became a nonprofit corporation. The appellants then acquired three shares of the stock of the corporation, were elected to the board of directors and became trustees of the endowment fund. These positions were previously held by persons included in Group A.

In May, 1956, a partial liquidation was agreed upon whereby all stock, except that held by appellants, would be redeemed and in return the corporation would deed to Group A all of the assets of the corporation, except the endowment fund and some 400 improved cemetery plots. After this liquidation, Group A owned in fee approximately 6,200 burial plots and various buildings and equipment necessary to operate the cemetery.