John Hayhurst, Sr., died at the residence of his daughter, Pearl Kumpf on Feb. 22, 1925, leaving surviving him, seven children, John, Clinton and Steven Hayhurst, Pearl Kumpf, Ella Davidson, Mollie Shipman and Sallie Dell.
The remains were to be interred in Wood-lawn Cemetery but as weather conditions prohibited the interment the remains were received in a vault of the Glen Haven Cemetery.
Four children, named as defendants were about to inter the body in the Maple Grove Cemetery where a son of the deceased was buried. Learning of this intention, the plaintiff children obtained an order, restraining the defendants from interring the remains in said Maple Grove Cemetery.
The plaintiffs contend that their father during his lifetime expressed the wish to be buried in the Woodlawn Cemetery beside the body of his deceased wife. The defendants contend that their father expressed a wish to be buried in the Maple Grove Cemetery on the same lot with his son. The Hamilton Common Pleas held:
1. Because of the feeling which actuated all the children, the testimony of other witnesses will, to a large extent, govern the decision in this case.
2. Several witnesses, without the slightest interest in the outcome of this case testify that the deceased, in no uncertain terms, expressed his desire that his remains should rest beside the body of his son.
3. Cases of this nature must be considered by a court of equity on its own merits having due regard to the wishes of the decedent and to the rights and feelings of those entitled to be heard by reason of relationship and association.
4. There can be no property in a dead body and therefore a man cannot by will, dispose of same, and it does not become part of his estate.
5. Greater credence must be given to the testimony of the defense and it is apparent that it was really the wish of the deceased to be buried near his son in the Maple Grove Cemetery.
Judgment accordingly.