26 A. 42 | R.I. | 1893
This is a bill in equity to compel the respondent to return the body of her late husband, Thomas F. Hackett, to the grave where it was buried and from which she has removed it, without consent of the complainant, the father and next of kin of said Thomas F. Hackett. The deceased was the owner of a burial lot, one of *156 a family group, in St. Mary's Roman Catholic Cemetery in the village of Crompton, where he was buried, with the acquiescence of the respondent, his widow. About six months afterward she caused the body to be exhumed and buried in the Riverside Cemetery in the city of Pawtucket. The respondent claims that she was justified in doing this, first, because her husband had requested her not to permit his body to be buried in a Roman Catholic cemetery, but in a Protestant cemetery; second, that she did not consent to his burial in St. Mary's Cemetery, but, being overcome with grief, and with physical prostration, from nursing her husband in his last sickness, she yielded under protest, to the demand of his relatives, for the burial aforesaid, so far as to offer no resistance thereto, on account of their threats to take forcible possession of the body and of her aversion to the disgrace of any strife over his remains;third, that as the widow of said Thomas F. Hackett she has the right to control the place of burial and that she has not surrendered this right.
Upon the first and second grounds set up in the answer we did not hear testimony, preferring first to consider the third ground, in which the widow claimed the right to control the place of burial, as against the next of kin; which might be decisive of the case. We come then to the question whether the right to control the burial of a deceased husband is in the widow or in the next of kin. In Pierce v. Proprietors of Swan PointCemetery,
For these reasons we are of the opinion that, as a general rule, the primary right to control the burial of a husband should be with the widow, in preference to the next of kin, dependent however, upon the peculiar circumstances of the case or the waiver of such right by consent or otherwise. In all the cases, the matter of consent is a controlling element, where the body has been buried. In the present case it is claimed that there was simply non resistance, coupled with a protest, on account of threats and fear of a disgraceful scene, but no consent by the respondent. If consent obtained by coercion, or by an undue advantage taken of one's physical and mental prostration, be sufficient to vitiate a mere contract, for a stronger reason should it be so in a case which touches far more keenly the feelings, privileges and comfort of one bereaved by death. So inWeld v. Walker,