Two brothers sued their grandfather’s “heir at law” for changing the inscription of the monument on a family plot (allegedly) without the authority to do so. The case was reminiscent of the Abbott & Costello comedy skit “Who’s on First.” Determination of the dispute took the Court to the intersection of genealogy, cemetery law, and the statute governing descent and distribution.

Robert and John Liere sued Alan E. Frick Memorials and Herman Liere for negligence, trespass, and conversion, based on their modification of the inscription on a monument for a family plot in the Yaphank Cemetery. Robert and John did not contest the accuracy of the modification; instead, they argued only that Herman Liere had no ownership interest in the plot or the monument and thus lacked the authority to cause the changes to be made. Memorials, Inc. is the entity that Herman hired to inscribe the modifications on the monument.

The facts were uncontested. Herman Henry Liere, whose name was denominated with the suffix “Sr.” and to whom Robert and John attributed the nickname “Hank,” purchased the plot in 1998, as well as the monument. The plot was deeded to the “Herman H. Liere Family.” Hank had four children: Herman’s father, Robert, John, and Lorraine. Hank was predeceased by Herman’s father, who died in 1997, and by Hank’s spouse, who died in 1998.

Hank died in 2007. But his will made no reference to the plot. Lorraine, who never married and had no children, died in 2016 and did not make a specific bequest in her will with respect to the plot. County Court dismissed the complaint. Robert and John appealed.

Under the Not For Profit Corporation Law, where a cemetery plot owner who is not survived by a spouse, such as Hank, dies without specifically devising the plot in his or her will, ownership of the plot is not included in the decedent’s residuary estate but instead passes to the owner’s “descendants then surviving”—known as “heirs at law”.

Under the Estates Powers & Trusts Law, “heirs at law” generally means the decedent’s “distributees”– which, as defined in the EPTL, means “a person entitled to take or share in the property of a decedent under the statutes governing descent and distribution.” The EPTL provision governing “descent and distribution” directs that where, as in the case of Hank, a decedent is survived by issue and no spouse, his undevised property passes to “the issue, by representation”. And where, as in the case of Lorraine, a decedent is survived by the issue of her parents but is not survived by a spouse, by the issue of her own, or by either of her parents, her undevised property passes to “the issue of the parents, by representation”.

Property passing by representation is divided into as many equal shares as there are: (i) surviving issue in the generation nearest to the deceased ancestor which contains one or more surviving issue; and (ii) deceased issue in the same generation who left surviving issue if any. Each surviving member in such nearest generation is allocated one share. The remaining shares, if any, are combined and then divided in the same manner among the surviving issue of the deceased issue as if the surviving issue who are allocated a share had predeceased the decedent, without issue.

Since Hank was survived by three issues (Robert, John, and Lorraine) and was predeceased by one issue (Herman’s father), each of his surviving issues inherited one share in the cemetery plot, and one share passed to be divided among the issue of his predeceased child, one of whom is Herman. Upon Lorraine’s death, her share was divided into three parts, one of which went to each of Robert and John and one of which went to the issue of Herman’s father, who was her predeceased brother. Consequently, as one of the issues of Hank’s predeceased child and also as one of the issues of Lorraine’s predeceased brother, Herman became a part-owner of the cemetery plot.

Thus, the sole contention Robert and John raised raise on appeal—that Herman was liable for the inscription on the monument because he was not an owner of the cemetery plot—lacked merit.