delivered the opinion of the Court.
This case is an appeal from a decree denying a widow the right to disinter her husband.
Elizabeth L. Dougherty (Elizabeth) and Patrick F. Dougherty, Jr. (Junior) were married in Baltimore City on December 31, 1971 after a long acquaintance. Suddenly on June 20,1972, Junior died intestate and without having made any plans in case of his death. Elizabeth notified her father-in-law, Patrick F. Dougherty, Sr. (Senior) of- her husband’s death, which was also the first knowledge that Senior had that Junior and Elizabeth were married, though Elizabeth was known by the Dougherty family. Senior expressed concern that he would have to bear the expense of the funeral; however, Elizabeth assured him that she would assume all funeral costs. The next day, following Junior's
On June 23, 1972, Junior’s body was interred in Lot B-4 of the Dougherty family plot and Lot B-3 was designated as the lot reserved for Elizabeth.
Elizabeth paid for the funeral and for a period thereafter attempted to have Senior reduce to writing his promise to allow her to put a proper marker on Junior’s grave. Senior refused to put anything in writing but insisted that any marker must meet his approval. Elizabeth offered to buy the lots, but Senior refused to sell. Elizabeth then threatened to remove Junior’s remains if she could not be buried there. The parties referred the matter to their respective lawyers but the answer from Senior remained the same.
On October 18, 1974, Geraldine M. Dougherty, Junior’s sister, died and was buried in B-3, the lot reserved for Elizabeth. Elizabeth instituted these proceedings against Senior to disinter her husband with the intention of moving his body to one of two adjoining sites she had purchased in the same cemetery. Senior died on January 7, 1975 and his personal representatives, substituted as respondents, along with Carol, the sole Dougherty survivor, agreed to give effect to the agreement between Elizabeth and Senior by removing the remains of Geraldine from B-3 to another space in the family plot and thereby reserving B-3 for Elizabeth. Elizabeth refused to accept this compromise.
The matter was tried before the Circuit Court of Baltimore City (Sullivan, J.) which decided that Senior had been distressed over the death of four members of his family in four years (which included two of his children) and had made a mistake in burying Geraldine in B-3. The court ordered the
Our predecessors decided in
Unterstitzung Verein v.
Posner,
Thus, any right of the wife to remove the body after it is interred is conditioned upon her having a sound reason. There have been instances when the courts have granted permission,
e.g.,
when the initial interment was understood to be temporary,
Sacred Heart of Jesus Polish Nat’l Catholic Church v. Soklowski,
Elizabeth contends that she has a substantial reason to justify disinterment. She asserts first, that the consent she gave to Junior’s burial in the Dougherty plot stemmed from her grief and the pressure due to the weather and the investigation by the police; second, that the burial site was only temporary; and that Junior’s sepulture was conditioned upon her being able to be buried next to him and her being able to select a proper grave marker. She claims that Senior thwarted her efforts to select a proper grave marker and violated the terms under which Junior was interred by refusing to state in writing his promise that she could be buried in B-3 and finally by burying his daughter, Geraldine, in that very same lot. She contends that under these facts the chancellor was clearly in error when he ordered the body of Geraldine to be removed so that B-3 would be available for her burial beside Junior and thus consummate the original agreement.
The scope of appellate review in a non-jury case is set forth in Maryland Rule 886:
When an action has been tried by the lower court without a jury, this Court will review the case upon both the law and the evidence, but the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.
If there is substantial evidence to support the trial court’s
In the case sub judice, the chancellor heard all of the witnesses and concluded from the evidence, as a matter of fact, that Geraldine’s burial in B-3 was a mistake and that since Carol agreed that B-3 would be available upon Geraldine’s removal, Elizabeth had no valid reason for Junior’s disinterment.
Elizabeth contends that the chancellor erred when he found as a fact that Senior made a mistake when he buried Geraldine in B-3. She relies on the testimony of Charles Grove (Grove), President of Dulaney Valley Memorial Gardens, Inc. as proof that Senior did not want Elizabeth buried next to his son. Grove testified that the policy of the cemetery was to bury a wife to the left of her husband but that the final decision rests with the lot owner. When Grove informed Senior of this policy he “was not certain that [Senior] said anything” but nevertheless concluded that Senior “had apparently made up his mind.” 3 Grove testified he told Senior that the burial of Geraldine in B-3 would eliminate a gravesite for Elizabeth. His response was “I want it that way.” Elizabeth contends that this is strong evidence that Senior’s burial of Geraldine in B-3 was intentional and unmistakable. On cross examination, Grove admitted that Senior’s health was deteriorating and that he died shortly after Geraldine’s burial.
Testimony was also adduced from Allan H. Fisher, Jr. (Fisher), Senior’s personal lawyer and advisor for many years and now co-executor under his will. Fisher testified that Senior was a very sick man and “in perfectly horrible shape” at the time of Geraldine’s burial. He said that Senior had buried an immediate member of his family once a year for
We cannot say in view of this conflict in testimony, and considering the personal relationship between Fisher and Senior, the obvious condition of Senior’s health, and the emotional strain produced by repeated deaths in his family, that the chancellor was clearly in error in finding that the burial of Geraldine in B-3 was a mistake. We have said many times that the trial court is not only the judge of the credibility of the witness, but is also the judge of the weight to attach to the evidence.
Knowles v. Binford,
Elizabeth, nevertheless, contends that the chancellor exceeded his authority in ordering the removal of Geraldine to provide burial space beside Junior. However, she has no standing to contest this action. The only parties who have standing to object are the personal representative and Carol Dougherty, both of whom urged this action upon the chancellor in order to fulfill the agreement.
Both sides of this controversy rely upon Unterstitzung Verein v. Posner, supra as dispositive of the issue before the chancellor: In that case, one of first impression in Maryland, one Nathan Posner filed a bill in equity praying an injunction against the defendant cemetery from interfering with the removal of the remains of his father from its cemetery. The reason for the proposed disinterment was congestion and overcrowding and the complainant desired that his mother be buried next to his father. The cemetery appealed from an order overruling its demurrer. Our predecessors held that the allegations of the bill were vague and reversed and remanded. In doing so, they set forth certain guidelines to be considered by the chancellor in deciding whether the surviving spouse had a sound reason for disinterment.
As to whether a valid reason exists for such action, [Unterstitzung] suggests the following factors to be controlling in order of importance: (1) the wishes of the deceased, (2) the wishes of the widow/widower and next of kin ... and (3) the regulations of the cemetery. Here there were no expressed wishes of the deceased concerning his interment____As for the wishes of the widow, Mrs. Dougherty wants the body removed since she can no longer be buried next to her husband. At the same time, Carol Dougherty, sister to Patrick, Jr. and the sole surviving member of the immediate Dougherty family, has testified that she is opposed to her brother’s disinterment. Finally, the cemetery apparently does not object to the disinterment based upon any of its regulations.
After a consideration of these factors and others, the chancellor concluded “a valid reason does not exist for the disinterment of Patrick Dougherty, Jr., a more appropriate alternative exists under these circumstances.”
The chancellor gave due consideration to all factors presented by the evidence and in doing so decided who he believed and the weight to be given the testimony. He found that Elizabeth had no valid reason for disinterment, and concluded that her consent was voluntary and not unduly influenced; that the initial interment was not temporary; that Senior’s burial of Geraldine in B-3 was a mistake; and that the removal of Geraldine’s body would provide space for Elizabeth beside her husband. In light of these facts the chancellor concluded that the aspirations of all the parties could reasonably be met without disturbing the body and he shaped the relief to attain this end.
Based upon our examination and review of the evidence we cannot say that the decree entered by the chancellor was clearly erroneous.
Decree affirmed; appellant to pay the costs.
Notes
. Hurricane Agnes had reached Baltimore City causing torrential rains and flooding.
. It is universally recognized that there is no property in a dead body in a commercial or material sense. “[I]t is not part of the assets of the estate (though its disposition may be affected by the provision of the will); it is not subject to replevin; it is not property in a sense that will support discovery proceedings; it may not be held as security for funeral costs; it cannot be withheld by an express company, or returned to the sender, where shipped under a contract calling for cash on delivery; it may not be the subject of a gift
causa mortis;
it is not common law larceny to steal a corpse. Rights in a dead body exist ordinarily only for purposes of burial and, except with statutory authorization, for no other purpose.” Snyder v. Holy Cross Hosp.,
. B-3 is to Junior’s right rather than left.