169 Misc. 215 | N.Y. Sur. Ct. | 1938
In the petition for probate filed in this estate the petitioner cites the parties in interest “ to show cause why the last will and testament herewith presented and hereby offered for probate should not be admitted to probate.” With the petition petitioner presents two separate papers. The first of these is a printed form of will such as is commonly sold by law stationers. The proof shows that deceased used this form for the due execution of a will containing only one dispositive paragraph and a paragraph appointing executors. The printed form is a continuous sheet equivalent to two sheets of legal-cap size. Beginning at the end of certain printed text in the upper part of the face of the first sheet there was originally a long blank space which continued down to the lower part of the third page of the blank. On the first page the dispositive words of the will were written in pen and ink in the appropriate space. On the third page (the face of the second full sheet of the blank) the names of the executors were written in an appropriate place. The name of the testatrix was written in a blank space on the first page and the date of execution in blank spaces on the third page. The testatrix and the witnesses signed at the end of the will. Thus the original will was completely executed in sufficient compliance with the statute. Finally a notary public certified that the instrument had been subscribed and sworn to before him.
Probate courts do not exclude from an admitted instrument matter which is itself not dispositive provided the instrument otherwise contains dispositive provisions or provides for the appointment of an executor. The views of testators on mundane and celestial affairs (so long as not libelous or scandalous) are ordinarily recorded as part of the testamentary instrument. The courts decline, however, to probate instruments which contain neither dispositive provisions nor executorial appointment. The question presented by this petition and by the tender of the instruments now before the court is whether a paper purporting to dispose of a dead body only is a testamentary instrument and hence entitled to probate.
Article 198 of the Penal Law deals with sepulture and defines various offenses in relation to funerals and resting places of the dead and to the disturbance or misuse of dead bodies. The introductory section of that article (Penal Law, § 2210) provides: “ Right to direct disposal of one’s own body after death. A person has the right to direct the manner in which his body shall be disposed of after his death; and also to direct the manner in which any part of his body, which becomes separated therefrom during his lifetime, shall be disposed of; and the provisions of this article do not apply to any case where a person has given-directions for the disposal of his body or any part thereof inconsistent with those provisions.”
It has been doubted by grave and weighty authority whether there is any property in a corpse. Lord Coke formulated the common-law doctrine on this point and incidentally supplied a whimsical derivation for the word “ cadaver.” He said: “ It is to be observed, that in every sepulchure, that hath a monument, two things are to be considered, viz. the monument, and the sepulture or buriall of the dead. The buriall of the cadaver (that is Caro data vermibus) is nullius in bonis, and belongs to ecclesiastical cognisance, but as to the monument, action is given (as hath been said) • at the common law for defacing thereof ” (Coke’s Inst. [3d part] p. 203.) Both Lord Coke’s assertion that the word cadaver is a combination of the first syllables of the words in the Latin phrase “ Caro data vermibus ” (flesh given to worms) and his declaration that “ the buriall * * * is nullius in bonis ” were severely criticized in an oft-cited opinion written in 1856 by Hon. Samuel B. Ruggles while acting as referee in connection with the widening of Beekman street in this city (4 Bradf. 503, appendix). Many of the subsequent discussions by courts and text writers concerning the law of dead bodies will be found to contain most respectful references to this opinion. But there has been at least one vigorous dissent from the common estimate of the Ruggles views. Mr. R. S. Guernsey writing on “ The ownership of a corpse before burial ” (10 Cent. L. J. 303, 304), remarks that Mr. Ruggles’ opinion “ is full of errors of law and of fact, and will mislead those who look no further into the subject.” Without considering the merits of Mr. Ruggles’ views in their entirety it seems safe to say that old and new lexicographers support Mr. Ruggles and Vossius whom he cites (4 Bradf. 520) and establish that a corpse is called a cadaver — “ quia stare non potest ”— because it is unable to stand. The root is found in the Latin “ cadere to fall.
Mr. Ruggles (p. 521) says respecting Coke’s comment on property in a corpse: “ But even the dictum itself, if closely examined, will not be found to assert, that no individual can have any legal i interest in a corpse. It does not at all assert that the corpse, but only that the ‘ buriall ’ is ‘ nullius in bonis ’; and this assertion
It is perhaps impossible to know with certainty how the conception arose in the common law that a corpse is not and cannot be property. It will be remembered that in the natural science of Coke’s day (he died in 1634) there was a very limited understanding of the physical structure of the body, The prevalent conception of the seventeenth century was that which still obtains and no doubt will continue to enduré among men of religious faith. Coke himself expressed this conception, where he said: “ Concerning the building or erecting of tombs * * * it is lawful!, for it is the last work of charity that can be done for the deceased, who whiles he lived was a lively temple of the Holy Ghost, with a reverend regard, and Christian hope of a joyfull resurrection.” (Italics supplied.) (Coke’s Inst. [3d part] p. 201.) In speaking thus of the resurrection of the body, Coke had restated the aspirations of Job who said: “ And though after my skin worms destroy this body, yet in my flesh shall I see God ” (Job 19:26).
There is thus expressed by Coke a conception of the human body which was most congenial to the human mind in the seventeenth century. The body was the temple of the Holy Ghost from which at his death a man was temporarily to be separated. That this sacred object should be property was unthinkable to Lord Coke and to his contemporaries. The body in a commercial sense was devoid of market value. A son could not then have hypothecated the body of his father to secure money borrowed by the former as he might have done in ancient Egypt nor could execution be sued out by a creditor against the dead body of his debtor. A man had a right to the decent interment of his own body in expectation of the day of resurrection.
Various instances of testamentary directions disposing of the body have been collected by writers on the subject. “ Becker (Wilhelm A.) * * * cites the provision (in Chancles, pp. 390-1) of the will of Lycon [an ancient Greek] that his body should be burnt; the first known instance of testamentary disposition of the corpse.” (19 Am. L. Rev. 251, 256.) Frank W. Grinnell of the Massachusetts bar said in his article on “ Legal Rights in the Remains of the Dead,” published in the Green Bag for June, 1905 (p. 345): “ The following are instances of this practice: Jeremy Bentham, whose learning and research in the law gives his example peculiar weight, bequeathed his body for dissection. William Pelham, Kt., in 1532, bequeathed his body ‘to be buried in the Chauncel of Laughton.’ John of Gaunt, in 1397, directed his body to be buried in the cathedral church of St. Paul, ‘ and that it be not buried for forty days during which I charge my executors that there be no cering or embalming of my corpse.’ ”
For these reasons a considerable body of case law developed. The majority of the courts plainly held that a testator might use his will to give binding directions respecting the disposition of his remains. The minority were of a different opinion and then-views are principally to be found in Williams v. Williams (L. R. 20 Ch. Div. 659) and Enos v. Snyder (131 Cal. 68; 63 P. 170). 3h the Williams case deceased by his fourth codicil directed that his body should be given to a named person “ to be dealt with by her in such manner as he had directed to be done in a private letter to her.” The court, after citing Reg. v. Sharpe (Dea. & Bell C. C. 160) for the proposition that there is no property in a corpse, and Blackstone on the duty of an executor to bury his testator, held (p. 665): “ It follows that a man cannot by will dispose of his dead body. If there be no property in a dead body it is impossible that by will or any other instrument that body can be disposed of.”
A similar determination was reached in Enos v. Snyder (supra). There deceased had separated from his wife and daughter and was residing with the defendant. He left a will which contained
Both the Williams and Enos cases are aptly dealt with in Pettigrew v. Pettigrew (207 Penn. St. 313, 317; 56 A. 878), where the court, after holding that the law “ recognizes property in a corpse, but property subject to a trust,” said: “ In Williams v. Williams, L. R. 20 Ch. Div. 659, Kay, J., held that the right of custody being incident to the duty of burial which is in the executors, a man in England, ‘ cannot by will dispose of his dead body.’ * * * The case grew out of the disinterment and cremation of the body by a stranger to the family * * * and with great respect for the tribunal I cannot help thinking that the decision was unconsciously influenced by the English conservatism in regard to burial, and the attendant reluctance to countenance in anyway the innovation of burning. The clear trend, I think, of the American decisions, is to the contrary notwithstanding * * * Enos v. Snyder * * * where the cases cited do not support the dictum.”
This Pennsylvania decision correctly states the actual drift of American decisions and also illustrates the tendency of the courts to justify their results by questioning the dictum of Coke that a corpse is nothing from the standpoint of property. The Pennsylvania court’s assertion that the body is “ property subject to a trust ” may be compared with the holding in Pierce v. Proprietors of Swan Point Cemetery (10 R. I. 227, 238) that a dead body may be considered “ as a sort of quasi property;” with the determination in Larson v. Chase (47 Minn. 307; 50 N. W. 238) that to a person with a right to the possession of a corpse it “ is his property in the broadest and most general sense of that term; ” and finally with the conclusion stated in Bogert v. City of Indianapolis (13 Ind. 134, 138; 41 N. E. 396) that “ we lay down the proposition, that the bodies of the dead belong to the surviving relations, in the order of inheritance, as property.” (This last view is in “ characteristic disregard for precedent.” See 19 Am. L. Rev. 251, 264.)
In New York it has been stated that there is no property in a corpse. (Snyder v. Snyder, 60 How. Pr. 368, 371; Secord v. Secor, 18 Abb. N. C. 78, 80.) In the latter case the court writing of the Indiana doctrine mentioned above said that this viewpoint is “ sustained neither by adjudication elsewhere, nor by principle that will find favor in our courts.” On the other hand, the case of Larson v. Chase (supra), in which a corpse is said to be property within the broadest meaning of that term, has been cited with approval by the Court of Appeals in Darcy v. Presbyterian Hospital (202 N. Y. 259, 263; reargument denied, 203 id. 547). The court in the cited case also said (p. 262): “ The most elaborate consideration of the question in the courts of this country appears in the case of Larson v. Chase (47 Minn. 307), in which, after an examination of the authorities both in this country and in England, the conclusion is reached that while no action can be maintained by the executor or administrator upon the theory of any property right (in a commercial sense) in a decedent’s body, the right to the possession of a dead body for the purpose of preservation and burial belongs to the surviving husband or wife or next of kin, in the absence of any testamentary disposition.” (Italics supplied.)
This passage implies that the Court of Appeals is prepared to rule that when a testator disposes of his body by will his directions will be deemed to concern proper subject-matter for such an instrument. This result has actually been reached in one New York case. In Cooney v. English (86 Misc. 292) action was brought by an executor to recover the remains of his testator, then interred in this State, for removal and reinterment in Pennsylvania. The action was opposed by deceased’s son who in ignorance of the provisions of the will had caused the remains of his father to be here
It is pertinent here to refer to the Roman civil law which furnishes much of the whole body of probate law of this State. In Matter of Van Ness (78 Misc. 592, 600, 601) Surrogate Fowler said:
“ I have cited the Roman law as still of some indirect influence on probate law and the law of wills, and in so doing I am justified by precedent. In this court the authorized citations of rules of law differ from those employed in the other courts of this State. The testamentary law, administered in this court, stands on its own independent foundations and it has a long history, too little understood. The genesis of the English and American will was peculiarly Roman, and in every country where wills exist Roman law affecting them remains potentially, even if not expressly, adopted. * * *
“ The influence of Roman or civil law * * * is necessarily to be recognized in probate jurisdictions. * * * When the Constitution of this State adopted the former law in force in New York, the civil and canon law, then recognized in the Ecclesiastical Courts of England and the Prerogative Courts of New York, became a part of the fundamental law of this State, and so it continues in this court, in the absence of more direct authority to the contrary, to prescribe the ratio decidendi for probate cases not otherwise provided for by statute or domestic adjudications of authority.” (Citing numerous authorities.)
In the Pandects (Book 11, tit. 7, § 12, subd. 4) the text says: “ Funus autem eum f acere oportet quem decedens elegit. Sed si non ille fecit, nullam esse hujus rei poenarn; nisi aliqwid pro hoc emolumentum ei relictum est: tunc enirn si non paruerit voluntati defuncti, ab hoc repellitur.” (5 Pothier’s ed., Paris, 1818-1823, 218.) In Scott’s translation (4 The Civil Law, 90) he construes this text to mean: “ He whom the deceased selected must conduct the funeral, but if he should not do so he will be liable to no penalty, unless something of value was left to him for this purpose; for then, if he does not comply with the will of the deceased, he will be excluded from the bequest,”
Accordingly the court has signed a decree establishing as the will of deceased the partly printed and partly manuscript instrument plus the typewritten codicil later embodied in the blank space of that instrument and plus the separate instrument dealing exclusively with deceased’s body.