40 A. 871 | R.I. | 1898
According to the averments of the bill, Jonathan M. Wheeler, late of Cranston, gave by will to the respondent, Laura Wheeler, all the residue of his estate, real and personal, a part of which was his burial lot in Swan Point Cemetery. His mother, Barbara Wheeler, a son by his former marriage, Oscar Wheeler, his first wife and others were buried in the front part of the lot, and he was also buried there, in a space reserved for himself, and these dispositions were made by his express direction. A contest of the will, by the complainant, resulted in the withdrawal of opposition, upon the execution of a deed of the burial lot by Laura Wheeler to the cemetery corporation in trust "for a place for the interment for me, the grantor, and for me only, in addition to those already buried therein, and subject during my lifetime to my visiting and remaining on said grounds during all reasonable hours." After this, at the request of Laura Wheeler, the corporation caused the body of the son, Oscar, to be removed from the place where it had lain since 1864, and the space to be marked "Place reserved for Laura, wife of J.M. Wheeler." The complainant has requested the corporation to return the body to the place from which it was removed, which request has been refused.
The respondents demur to the bill.
While a burial lot is regarded as property, in which title *648
may in most cases descend to heirs (Field v. City ofProvidence,
The principle of all the cases seems to be that the buried body shall remain undisturbed, and that the right and duty falls to the next of kin to see that its repose is duly protected. This right "after burial," was referred to in Hackett v. *649 Hackett,
Thus it appears that a burial by the consent of those most nearly interested is regarded in law as a final sepulture, which cannot be disturbed against the will of those who have the right to object, generally the next of kin, on account of change in feeling or circumstances. We do not say that there may not be possible exceptions to this rule, since it is more a rule of ethics than of law, but it is safe to say that in law it is recognized as the general rule.
In view of what we have said, it follows that the respondents had not the right, by reason of title in the lot or guardianship over the body of Oscar Wheeler, to remove his remains; but we think there is another ground which is sufficient to estop the respondents from claiming such authority.
The complainant withdrew her appeal from the probate of the will upon the consideration of the execution of the trust deed of the burial lot to the corporation. Evidently she had a strong feeling in regard to this lot, which adjoins her own, as she was willing to withdraw her appeal upon the assurance that it should not be disturbed, except by the burial of Mrs. Wheeler therein, and her right to visit it. When Mrs. Wheeler reserved these rights and nothing more, and put the title, if she had any, in the corporation in trust only for the exercise of those specific rights, it is clear that she no longer had, if she ever had, the right to remove a body which had been buried there. Of course it may be said that it is *650 proper that she should be buried by the side of her husband, and she might have said so in her deed. Perhaps if she had said so the will contest would not have been settled. But she did not say it, and the deed does not imply it. In reserving the right to be buried in the lot, and nothing more, it could only mean in a vacant part of the lot, and this inference is strengthened by the words, "in addition to those already buried therein." It would not give anybody to understand that she was first to remove a body already buried there.
We are therefore of opinion that neither Mrs. Wheeler nor the corporation had authority to remove the body of Oscar Wheeler. In view of a suggestion in the bill that there may be a satisfactory arrangement, by a proposed change, we simply say now that the bill states a case and the demurrer is overruled.