Dissenting opinion
Schaeffer, P. J.,September 4, 1945. — After careful
consideration I have come to the conclusion that the exceptions to the chancellor’s decision should be sustained. Plaintiff claims that the lands in question are exempted from taxation by paragraph (b) of section 204 of The General County Assessment Law of May 22, 1933, P. L. 853, 72 PS §5020-204, which is as follows: “The following property shall be exempt from all county, city, borough, town, township, road, poor and school tax, to wit: . . .
“(6) All burial grounds and all mausoleums, vaults, crypts or structures intended to hold or contain the bodies of the dead, not used or held for private or corporate profit.”
The chancellor’s various findings of fact properly state the facts. We have here a cemetery association *215incorporated as a nonprofit corporation which owns the cemetery here in question. The chancellor finds as a fact that the unsold and unimproved portions of the cemetery are not excessively large under the circumstances and that therefore the whole of the tract is exempt from taxation “if it has been shown to be not held for private profit”.
The chancellor does not find that the tract is held for private profit but has concluded that plaintiff has not shown that it is not so held.
As set forth in his opinion, the chancellor’s doubts appear to arise from the prior history of the cemetery coupled with the fact that plaintiff’s mortgage bonds are held by the shareholders of the former cemetery company plus the fact that the management of plaintiff association is vested in a group of the former shareholders. Plaintiff, after incorporation, acquired the tract in question by deed from the Laureldale Cemetery Company, a corporation for profit, and, in consideration thereof, executed simultaneously a mortgage to the Berks County Trust Company, trustee for $113,375, wherefore the trust company, as trustee, issued bonds pro rata amongst the former shareholders of the grantor cemetery company. As the chancellor has found, the actual value of the real and personal property so transferred to plaintiff was at least equal to the amount of the indebtedness secured by the mortgage. These facts, coupled with the facts that the former shareholders had received dividends of 86 percent in less than 20 years from the cemetery company, and that these shareholders are given a paper profit of 25 percent in exchanging their stock for bonds, seem to lead the chancellor to the conclusion that the nonprofit status of plaintiff is not clearly established. But plaintiff’s status as a nonprofit corporation is not to be determined by what the original cemetery company *216did nor by the fact that the shareholders of that original company have made a profit. Obviously the converse would not follow.
Whether or not the cemetery lands are exempt from taxation must be judged by facts which existed on December 30,1942, the date of transfer, or which have arisen subsequently: W. G. Halkett Co. v. City of Philadelphia, 115 Pa. Superior Ct. 209. Accordingly, this decision may not rest upon the prior history of the cemetery or upon whether or not the cemetery company’s shareholders found this investment to be profitable or not.
The proof of plaintiff’s right to exemption is not subject to any special formula; it is an issue of fact in a civil proceeding. Such proof should outweigh the proof to the contrary but it is sufficient if it tips the scales. The proof is sufficient if it enables the court “to find” the right to exemption: Union Trust Company of Pittsburgh’s Account, 326 Pa. 251, 256. We start with the presumption that all land is subject to taxation; but this presumption disappears when the owner points to a statute exempting it and offers proof that the land is within the terms of the statute. If there be such a statute and the proof that the res is within the language and intent of the statute outweighs the proof to the contrary, a court should declare the land exempt.
Here this is no dispute as to the existence of the statute of exemption. Nor do I find any difficulty in declaring that plaintiff has shown that the tract in question falls within the language and intent of its provisions. The lands are burial grounds not unreasonably large for this community in the years just ahead; these lands are owned by plaintiff which is incorporated as a nonprofit association. Nor is there any evidence from which we think that it can be inferred that the lands are used or held for private profit. If we are correct in holding that this question must be deter*217mined from the facts existing at or after the transfer of the lands to plaintiff, the profit made or to he made by the shareholders of the original company is irrelevant. The status, we think, is exactly as it would have been if the mortgagee had itself held the mortgage bonds for its own account and paid off the present bondholders in cash. The only other element of profit referred to in the testimony is the salaries paid to plaintiff’s president, superintendent and secretary. But these are the same salaries which were paid to the same persons for the same work by the former cemetery company, a shareholders’ company organized for profit. Certainly we are not justified in concluding that the company existing for the profit of its shareholders, some thirty in number, voluntarily paid excessively large salaries to its officers and employes. The payment of these salaries does not support the conclusion that the recipients thereof are receiving a personal profit, that is, an excess over the reasonable value of their services.
In my opinion the uncontradicted testimony which we are not at liberty to disbelieve inevitably leads to a finding by the court that the cemetery lands are exempted by the statute.