Goldman v. MollenGoldman v. Mollen
delivered the opinion of the court.
Frances Idear, a daughter thirty-seven years old when this cause was heard, said that her father was an orthodox Jew and lived in that faith until his death. He came to Richmond in March, 1910, where, associating himself with men of his faith, he joined Sir Moses Montefiori Congregation, but that some years later he and a small group of his associates became dissatisfied and thereafter worshipped in a rented room on West Broad Street. He was a rabbi and as such was charged with and did perform certain of the ritualistic duties imposed upon him by his faith.
This witness was teaching in Harrisonburg when her father died. She came home and found that the funeral arrangements had already been made. They appear to have been made by members of the decedent’s synagogue. She did not know who had called upon them to act and said that might have been done by some member of her family.
The father died suddenly, but the mother was in fail
Dr. Isaac H. Goldman, a son forty-four years old, lives in Richmond, is a practicing physician and was his father’s administrator. His testimony is in substantial accord with that of his sister. Like her, he is not orthodox but is a member of Beth Ahabah Synagogue and was a member of that synagogue at the time of his father’s death. He put a tombstone on his grave, and when asked why he was late in raising objection to his place of burial said: “At that time, no, because my mother had been very ill; she had high blood pressure from the time of his death until the last 7 years, or 6 years, when she was paralyzed. She was paralyzed six or seven years ago and died with a stroke this last September.” He said that his mother was an orthodox Jew and lived in that faith until after her husband’s death, but that for the past ten or twelve years, “I wouldn’t say she stuck strictly to the tenets of that religion.”
I. Milchin is a trustee of the Montefiori cemetery. He said that Mr. Goldman was an assistant rabbi in Sir Moses Montefiori Synagogue but did not attend it regularly in the last years of his life because his feet hurt him and because his faith did not permit him to ride in a car on Saturdays. He said that his synagogue was of the orthodox faith and that all burials in its cemetery were conducted in strict conformity to its requirements.
Abraham Sherman was a member of this congregation. He said that Mr. Goldman was an orthodox Jew and a regular attendant and that Mrs. Goldman was an orthodox Jewess.
Robert Aurbach was a life-long friend of Mr. Goldman and had known him in Hampton where they both lived
Meyer Mollen was chairman of the cemetery board and thought that a deed had been delivered to the Goldmans for their lot, although he himself did not deliver it and had no positive knowledge of its delivery. The custom was to deliver deeds. He also said that he heard no trouble about Mr. Goldman’s burial in that cemetery until after the death of his wife.
Max Friedman was a member and officer of the congregation. He said that Mr. Goldman was a shehitah and in that capacity attended to the killing of cattle and chickens according to orthodox Jewish law and was a regular attendant upon religious services in the synagogue until the organization of their little place of worship on West Broad Street. He further said that when a member of the congregation died it was the custom for a member of the family to call the chairman of the cemetery board and that with the consent of the family a section was then sold to it and could not have been sold otherwise.
S. Spilberg was also a trustee of the cemetery board and had been a presiding officer of the congregation for two years. He said that it was Mr. Goldman’s custom to attend services almost every day but that in latter years he did
Rabbi Max Forman is a resident of Petersburg and a spiritual leader of the orthodox community there, and said that he himself had been a student at the University of Pennsylvania in matters pertaining to his faith and is a graduate of that institution. He tells us of Jewish law.
“According to the Shulchan Arukh, which is the official body of Jewish Law, the Section Yore Deah, Section 363, paragraph One, which is ultimately based upon the Talmud, that is the body of official Jewish Law, Tractate Moed Katon, Chapter 3, of both the Babylonian and Jerusalem Talmuds, which, in turn, is based upon the Bible Chapter 28 of First Samuel, or the Third Chapter of Job, where references are made, in the first case, to the story of the Witch of Endor, in which King—If you will permit' me to relate the story—
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“In which it is specifically stated that a body may not be disinterred except with two or three exceptions, and these exceptions I am prepared to state, as given in Jewish Law. First; that the body be buried a second time in Palestine. That has to do purely with a religious motive connected with the belief in the resurrection. Secondly; a body may be exhumed if the person has stipulated in his lifetime that he is being buried temporarily, that after a time he should be buried in another place. And a third exception,, and only other exception, is the fact that whether a person is willing to be buried together with his parents together in a family plot in a family estate. That has to do purely with his parents, not with his children. According to this law it is the father that determines where the family should be buried. Where a father is buried there constitutes in itself, if there is room for it, a place where the other people of the family should be buried. A mother, or
He also said that a body might be disinterred when there was danger of its being washed away, or when burial had been in a non-Jewish cemetery, all of which is in accordance with Shulchan Arukh which had not been changed since the 17th Century and rests upon the Talmud, which, in turn, is based upon the Bible. To take up the body except in conditions named constitutes a desecration and a disrespect to the dead.
Rabbi Charles Podbelevitz was next called. He said that there were four sections of Shulchan Arukh, one of which is called Yore Deah; in it this rule appears:
“It is forbidden to remove, to exhume a dead person, body or his bones, neither from a respected burial place to another suitably respectable burial place.”
Dr. Edward N. Calisch, a distinguished representative of his faith, was called upon to testify in rebuttal for the plaintiffs. He gives us an interesting history of Jewish law, in the course of which he said:
“Now the Shulchan Arukh continued to be, as I say, the law for those who chose to obey it, but with the emancipation of the Jewish people, there grew, so to speak, what we call a reform movement, and this reform movement felt that it had a right to interpret for itself. If I might compare it, I would say it is very much like the Protestant religion in which the right of individual judgment and individual conscience in interpretation of the Bible was insisted upon, and the reform movement among the Jews was in a sense the same thing. And as the reform movement grew, it began in Germany early in the 19th Century—they discarded many of the things that were insisted upon by the Shulchan Arukh. Now, therefore, insofar as Jewish Law is concerned, the law is the
He thought that in accordance with the reformed interpretation of the law there could be no objection to this disinterment, but in an affidavit which he gave in another case in which the father was buried in a particular place and the mother was brought over to rest by him, he said:
“# * # ‘Ordinarily Jewish practice objects to the removal of a dead body from one grave to another out of consideration and respect for the dead. It is believed that after having been put to rest the dead should not be disturbed. If, however, there is any valid reason for the removal, especially if there is any consideration which would justify this assumption, that were the dead alive he or she would consent to the change in the resting place, the Jewish Law and practice permits such a removal.’ As, for example, the Shulchan Arukh, 341—that is the same-permits the disinterment and removal of a dead body in order to bury the same in another place together with his or her relatives. This is exactly like the case you state, the son being desirous of having his mother’s remains rest in the same place where his father was.”
Rabbi Sidney Lefkowitz is an assistant of Dr. Calisch at Beth Ahabah Synagogue and a graduate of the Hebrew Union College in Cincinnati, a seminary for reformed rabbis. He said that there was considerable difference between the customs and laws of the reformed synagogues and orthodox synagogues. He was of opinion that Mr. Goldman’s body might be disinterred without violating any law because of the particular circumstances of this case. Miss Frances Goldman was recalled and said that she made no arrangements with Mr. Aurbach about the funeral and that he is mistaken in his evidence.
Rabbi Aaron H. Lefkowitz was of opinion that under the facts in this case, stated hypothetically, the removal of the body would not be in violation of Jewish law.
Benjamin Goldman, at all times in his life, was a devout and consecrated orthodox Jew and was a member of an orthodox synagogue at the time of his death. His burial was in strict accordance with its laws and rituals. The lot in which he was placed was in an orthodox cemetery and was bought and paid for after his death by his family. On it they placed a monument to his memory. Mrs. Goldman was also an orthodox Jew and continued in that faith throughout her husband’s life.
Some time after the husband’s death, the widow drifted away, grew to sympathize with Reformed Jewish worship, and expressed a desire, during her long last illness, to be buried beside her husband in a reformed Jewish cemetery. Her children buried her there and now wish to place her husband by her side. If this is to be done, he must be disinterred and buried where he did not want to be buried.
It is true that Mr. Goldman did not expressly state to any one, so far as this record shows, where he desired to be buried, but he was an orthodox Jew and was a member, officer and priest in his synagogue. That he desired his body to be dealt with according to the tenets of his faith is an inevitable conclusion, and a conclusion, as we have seen, recognized by his family. We do not doubt that a devout Catholic would wish to be buried in consecrated ground and would object to his body being taken from such a place and put in a Protestant cemetery, and we do not doubt that a Bombay Parsee would wish to come to final rest on Malabar Hill. These are among the things we know without being told. Goldman’s whole fife is an impressive expression of his will. One must be
Schisms in churches are too often the source of unending feuds. Dr. Calisch, we have seen, compares that in his to the Catholic and Protestant branches of Christian faith. It is for this reason that we who are always orthodox pray to be delivered from all false doctrines, heresy and schisms.
Primarily decedent’s place of burial rests with his personal representatives, his widow or his next of kin.
Ordinarily personal representatives are not appointed until later and so this choice usually is made by the family.
Awtrey
v.
Norfolk & W. Ry. Co.,
As between them, the wishes of the widow should prevail.
Bonaparte
v.
Fraternal Funeral Home, et al., 206
N. C. 652,
In a commercial sense, there are no property rights in the bodies of the dead, but their survivors have a right to their possession and the right to make final disposition thereof, decently and in order. . But this right carries with it corresponding obligations; disposition when made must be seémly and proper.
Awtrey
v.
Norfolk & W. Ry. Co., supra;
17 C. J., p. 1137. That this may be done, cemeteries where permanent care is measurably assured are usually selected. Title to lots therein is not ordinarily
In the light of what has been said, we reach, without difficulty, these conclusions:
Mr. Goldman was buried where he wanted to be buried. Moreover, if we for the moment assume that the right of choice rested absolutely in the widow, he was buried where she wanted him to be buried, and this wish of hers stood unchanged for years. The selection then had the approval of the entire family, or in any event its consent, and was ratified by a monument subsequently erected. In short, Mr. Goldman was buried where he wanted to be buried and where his family wanted him to be buried. This change, if made, places him where he did not wish to be placed, and, if made, must be made for religious reasons only, because in the Sir Moses Montefiori Cemetery lot where he is buried there is ample room for the burial of all of his people.
In the petition for appeal, it is said that the petitioners have consistently maintained * * that the cemetery trustees are not parties in interest.” This contention is not carried into the assignments of error, is not further adverted to and appears to have been abandoned, but in any event it is not well taken.
Plainly the trustees of a cemetery have a right to object to its dead being disturbed, and they have the right to be heard.
In
Hudek
v.
St. Peter Greek Catholic Cemetery Ass’n,
(Sept. 22, 1907), 101 N. J. Eq. 399,
* # it always has been, and will ever continue to be, the duty of courts to see to it that the expressed wish of one, as to his final resting place, shall, so far as it is possible, be carried out.”
Thompson
v.
Deeds,
Cases constantly arise in which disinterment should be permitted, but where this right is not conceded, they should be heard upon their merits and decided upon their merits.
It is next said that evidence of Jewish law should not be received. Jewish law, as such, is no more to be followed in Virginia than is Chinese law, but it may be both competent and important to show the custom and wishes of those who observe its mandates, and this is particularly true when they believe that they are in part divine.
In Yome v. Gorman, supra, Cardozo, J., said: “A rule of the Church forbids the removal of a body from consecrated ground to ground that is unconsecrated, or consecrated to another faith.”
Sacred Heart, etc., Church
v.
Soklowski,
“But she yielded to her son’s insistence that her husband be interred in plaintiff’s cemetery, upon the son’s assurance that he had obtained permission from the priest in charge of the plaintiff congregation to remove the body whenever she wanted to thereafter.”
The lower court held that the wishes of the deceased “should be scrupulously carried out, and that the wishes of the survivors” should be secondary. This the Supreme Court of Minnesota said was too broad a statement and cited in support of its conclusion and with its approval this statement from
Pettigrew
v.
Pettigrew,
Goldman died an orthodox Jew. Mrs. Soklowski was a Catholic when Mr. Soklowski died and had always been of that faith. Mrs. Goldman was an orthodox Jewess when her husband died. Mrs. Soklowski’s consent was condi
In passing it may be said that the Minnesota Supreme Court was of opinion that the owner of the cemetery was a proper party to that suit.
In the Pettigrew Case James. Pettigrew died suddenly without malting any provisions as to the place of his, interment. There was a conflict of evidence as to the then wishes of his widow. Her evidence was that it was her intention to bury him where he was buried temporarily. The court said that the question as to how far decedent’s wishes were to prevail was an unsettled question, and did not undertake to settle it. No questions of faith were involved, but the court found as a fact that in the lot where the husband was buried there was not room to bury the widow and their daughter, and so a removal was permitted.
In Yome v. Gorman, supra, it appears that Yome and his wife purchased a lot in a Catholic cemetery. Yome died in the faith of his church and was buried there. Both he and his wife were Catholics. She then left that church and demanded permission of the supervisor of the cemetery to remove her husband’s body. This was refused and suit was brought. In that case a wealth of authorities are cited by Judge Cardozo. He referred, as we have seen, to a rule of the church which forbids the removal of a body from consecrated ground to that unconsecrated or consecrated to another faith. He said that the wish of the deceased, though no legal compulsion might attach, was of large significance, and particularly so when that wish had its origin in religious feeling.
“Only some rare emergency could move a court of equity to take a body from its grave in consecrated ground and put it in ground unhallowed if there was good reason to suppose that the conscience of the deceased, were he alive, would be outraged by the change. Subordinate in
That case, in all of its essentials, is like this in judgment and is probably the leading case on this subject. There, as here, we have the deliberate consent of a widow once given, and in each case later we have an effort to take a body from its grave in consecrated ground.
On this subject there is a staggering wealth of cases. To undertake any detailed discussion of them would be endless and fruitless. In the main, each turns upon its facts. The wishes of the widow and of the next of kin are entitled to tender consideration, and the wishes of the deceased, particularly when their origin rests on matters of faith, are not to be overlooked. Here Goldman was buried where he wanted to be buried and where his widow wanted him to be buried, and this was no mere personal preference but had its origin in deep religious feeling. Afterwards it may be said of his widow, as was said of Mrs. Yome, there was “a change of heart.” She and her children then desired that he be placed in what was to him unconsecrated ground. There was no “rare emergency.” The faith of those surviving might change but the wishes of the dead are irrevocable.
Sentiments of conjugal and filial affection, though their existence is not questioned, are not the moving causes of this controversy. There has never been anything to prevent the burial of every member of this family beside the father in this lot amply large. Religious motives prompt this litigation. An orthodox Jew has been buried in an orthodox cemetery where he wished to be buried and where he has rested for more than twelve years. The children now, because they are of another faith, would place their father in what to him is unhallowed ground. That deference which for this reason is due to the choice of the children, is also due to the wishes of the father.
Finally it is said that even if Jewish law is to be observed,
The decree appealed from should be affirmed, and it is so ordered.
Affirmed.