Lead Opinion
for the Court:
¶ 1. Alfrеd. McGriggs passed away on January 22, 2014, and three days later, his body was buried on his family’s land in Claiborne County. The uncontradicted testimony of those close to. Alfred was that the location of his burial was precisely in accord with his wishes.
¶ 2. One of Alfred’s twelve siblings, Lee Augustus McGriggs Sr,, objected to Alfred’s body being interred on the family land. Lee took this intra-family dispute to chancery court, filing a pro se petition to exhume Alfred’s - body. - Lee’s petition named as defendants two of his siblings, MacArthur McGriggs (“Mac”) and Lenora McGriggs Wilkes (“Lenora Wilkes”).' The petition alleged that Alfred’s burial “was a violation- оf the cemetery laws of the State of Mississippi,” and it asked the court to order Alfred’s body to be exhumed and moved to the cemetery wheré the siblings’ .parents were buried.
¶ 3. Thé casé proceeded to a trial on the merits where the parties were allowed great leeway to present testimony and evidence. The chancellor found that Alfred’s burial did not violate state law and so denied the petition. Because the chancellor ruled correctly and the record discloses absolutely no reason ' for disturbing Alfred’s remains, we affirm.
FACTS
¶4. In the 1940s, Sampson McGriggs and his wife Lenora acquired a sixty-two-acre tract of land in Claiborne County. Sampson farmed some or all of the land during his lifetime, and he and Lenora had thirteen children, including Alfred and the litigants in this case, Sampson died in 1994, and Lenora died in 1999. Both, were buried at the Seven Star Cemeteiy in Uti-ca, as was one of their children.
¶ 5. During Lenora’s burial, a dispute or misunderstanding arose. The cemetery claimed that the family owed a .$500 fee, and someone parked a bus in the entrance to the cemetery in order to prevent the burial of Lenora’s body until the fee was paid. This incident clearly caused some of her children to have hard feelings toward the cemetery.
■- ¶ 6. Sampson and Lenora were survived by twelve of their children. There was some testimony at’trial that a will was
¶ 7. Alfred McGriggs was born in 1943. He moved away from Mississippi as a young man and worked for General Motors for thirty-four years before retiring in Kansas City around 2006. After Alfred retired, his brother Mac “picked him up in Kansas” and brought him back to Claiborne County, where he lived on or near the family land. About two years later, Alfred moved to Biloxi, where he lived with Mac.
¶8. Mac, Lenora Wilkes, Alfred, their sister Mary McGriggs Moore, and their brothers David McGriggs and Rev. Prank McGriggs took primary responsibility for the upkeep and maintenance of the family property at different times before and after their parents died. This rеquired Lenora Wilkes to travel frequently to Claiborne County from her home near Houston, Texas. Mac and Alfred also regularly drove up from Biloxi to mow and do other chores on the property. Mary purchased a tractor and Mac bought a bush hog for use on the property. Lenora Wilkes, Mac, Alfred, Mary, and other siblings paid taxes and other expenses related to the property at different times over the years.
¶9. Lee, a college professor, lives in Houston, Texas. He acknowledged that he has not assisted with the upkeep or maintenаnce of the property over the years. In 2013, Lee began paying the property taxes, although he admitted that no one had asked him to do so and that there were no delinquent taxes on the property. At trial, Lee testified that he intended to continue paying the property taxes and would establish some sort of trust that would continue to pay the taxes for “200 years.” Lee acknowledged that at the time of Alfred’s death, he did not have much of a relationship with his siblings, including Alfred. He did not agree with their “lifestyles” and felt they had brought “dishonor” on their parents.
¶ 10. Alfred died in Bilоxi on January 22, 2014. His body was prepared for burial by a funeral home in Biloxi and then transported back to Claiborne County. On January 25, he was buried near some cedar trees on his family’s land. Five of his siblings — Mac, Lenora Wilkes, Mary, Frank, and David — testified that this was where Alfred wanted to be buried. Their testimony regarding Alfred’s wishes was uncontradicted.
¶ 11. On February 10, 2014, Lee filed a pro se “Petition to Exhume the Body of Alfred McGriggs from the Sampson McGriggs Estate.” The petition alleged that Alfred’s burial on the property “was a violation of the cemetery laws of the State of Mississippi” and purportedly sought “thе protection of property rights of all heirs to the Sampson McGriggs Estate.” Lee also filed a letter that purported to be from his sister Hattie McGriggs Jones and stated that she “jointed]” Lee and another sister, Bessie O. McGriggs Dorsey, in asking the court to exhume the body. The letter contains numerous accusations of wrongdoing by the defendants, most of which have absolutely nothing to do with this case. The letter was neither sworn nor notarized,
¶13. The court heard testimony on March 11 and June 16, 2014.
¶ 14. Lee claimed that Alfred was still “legally married” to Frieda, but he produced no evidence of the marriage, he admitted that they had been separated for “many years,” and he could not remember Frieda’s maiden name. Lee’s wife admitted that Alfred never heard from Frieda anymore. The defendants denied that Alfred and Frieda were legally married, and all parties agreed that Alfred had a relationship and lived off and on with another woman after he returned to Claiborne County. It also appeared that Alfred had not seen his children in decades. And, again, neither the purported widow nor the children testified at trial.
¶ 15. As noted above, Lee’s petition alleged that Alfred’s burial violated state law. In particular, Lee allege a violation of Mississippi Code Annotated section 41-43-1(2) (Rev.2013). At multiple points in the hearing, the chancellor sought to focus the parties’ attention by reminding them that the legality of the burial was the sole issue before the court. When he did, no one objected or suggested that there were other relevant issues.
¶ 16. The court subsequently issued an order denying Lee’s petition, and Lee appealed.
ANALYSIS
¶ 17. The chancellor correctly rejected Lee’s argument that Alfred’s burial violated state law. Lee relies on section 41-43-1(2), which provides: “The board of supervisors of any county is authorized and empowered, upon petition and request to do so, to establish or designate the location of any private family cemetery to be located in the county.” Lee interprets this provision to mean that it is illegal to inter a body on private property without the authorization of the board of supervisors. Lee is wrong. “Section 41-43-1(2) does not give the board of supervisors the power to prevent the establishment of a private family cemetery; it merely gives the board the authority to establish or designate the location of a private family cemetery when petitioned and requested to do so.” Miss. Att’y Gen. Op., 96-0077,
¶ 18. The dissent agrees that the burial violated no law but would nonetheless reverse and remand because “the chancellor abused his discretion in failing to consider the factors set forth by the Mississippi Supreme Court in Hood v. Spratt,
¶ 19. Tо begin with, it is unfair to say that the chancellor “failed” to consider this issue because the. parties never raised it below or on appeal. The chancellor made clear that he understood the sole issue in the case to be the legality of the burial, and Lee never objected to that characterization. But, even .assuming that the Hood issue was fairly encompassed-within Lee’s petition and is now properly before us, there is absolutely no evidence in the record that would warrant disturbing Alfred’s remains.
¶20. The Hood opinion adopted the following principles as applicable to á petition to exhume a body:
[Tjhere [is] a presumption against removal growing stronger with the passage of time and with the remoteness of the connection with the decedent by the one desiring removal. The first rule [is] that the surviving spouse [has] the paramount right to designate the burial site and, if the parties were living in normal marital relations, a very strong cáse [is] required to justify judicial interference with the survivor’s wish. Secondly, in the absence of a surviving spouse, the right of selection of a burial site [is] in the next of kin in order of their relation to the decedent, and the rights of more distant kin might be modified by circumstances of special intimacy or association with the decedent. Thirdly, to what extent the desires of the decedent as to place of burial should prevail against those of the surviving spouse [is] an open question, but as against the remoter connections, such wishes, especially if strongly and recently expressed, [will] usually prevail.
Factors to which various courts generally have given consideration in permitting disinterment and removal of a body have included public interest, wishes of the decedent, rights and feelings оf those entitled to be heard by reason of relationship, rights and principles of religious bodies or other organizations which granted interment in the first burial site, and whether consent was given to interment in the first burial site by the one claiming the right of removal.
We are of the opinion all of these factors áre tó be considered when appropriate to determining such question and its determination is particularly one for a court of equity. There is no rigid rale for either permitting or refusing removal of a body once interred and each case must be determined on its own merits with due regard to public welfare, the wishes of the decedent and the rights*355 and feelings of those entitled to be heard by reason-of relationship or association.
Hood,
¶21. Applying these principles to the facts- of this case,-it is clear that there is no' legal basis for exhuming Alfred’s remains. To begin, “the desires of the decedent as to place of burial .,. usually prevail” over the objections of any person save, perhaps, a “surviving spouse.” Id. And this is “especially” true if the decedent’s wishes •were “strongly and recently expressed.” Id. Here, the uncontra-dictеd testimony from five of Alfred’s close siblings was that he desired, to be buried exactly where he is. In opposition, as discussed above, Lee failed to present any competent evidence of the wishes of a “surviving spouse” — or even that there is a surviving spouse. In any event, there is no dispute that Alfred and his alleged wife had not been “in normal marital relations” for years if not decades. Id. Accordingly, the alleged wife’s notarized-but-unsworn letter, which stated only that she joined Lee’s petition, provides no support for exhumation. Id. Alfred’s desire to be buried where he is must “prevail.” Id,
¶ 22. . Moreover, “the one desiring removal” in this case (Lee) and Alfred were brothers, but it is clear that there was no close “connection” betwéen them. The siblings who were close to Alfred are opposed to exhumation. This fact also creates a strong “presumption against removal.” Id.
¶ 23. A court will also look at the preferences of “the next of kin in order of their relation to” the decedent, which order may “be modified by circumstances of special intimacy or association with the decedent.” Id. .Here, again, the siblings closest to Alfred all testified that they wanted to follow his desire to be buried on the property. The only people who want to dig up Alfred’s remains were not close to- him. Even if we were to credit notarized-but-unsworn letters that were not entered into evidence at trial, they are from people who had not seen Alfred in years. Thus, the preferences of the brothers and' sisters who were close to Alfred also weigh heavily against exhumation. Id. ""
¶24. Finally, Hood reemphasized the “wishes of the decedent” twice more while also permitting consideration of the “public interest” or “public welfare.” ■ Again, the evidence of Alfred’s wishes was clear and uncontradicted, and there is no public interest in removing a man’s body from his preferred place of burial on private property. Thus, considered collectively, the ‘Hood factors” clearly mandate the denial of Lee’s petition.
¶25. As a reason for reversing and remanding, the dissent asserts that “[t]he record reflects that the' Sampson McGriggs estate heirs, were not consulted prior to Mac and Lenora Wilkes burying Alfred on the estate property” and “that many heirs [have] objected.” It is debata? ble whether the record is sufficient even to identify the heirs or determine the current status of the property, and wе find no evidence that “many heirs objected.” What the record clearly does reflect is that five of Alfred’s siblings testified under oath that Alfred desired to be buried right where he is and that they want to- comply with his wishes. Only Lee .testified that he objected. There is no competent evidence of any other relevant objection.
¶ 26. . Thus, if the dissent wants to remand the ease for further proceedings -so that the chancellor can apply the “Hood factors” to the existing record, then there is no need because there is no basis in the evidence for the chancellor tо do anything other than deny the petition. ' There could be no greater abuse of discretion than to
¶27. If instead the dissent wants to remand to allow Lee to present additional evidence, that is also a mistake. Lee had his day in court. It was his burden to present evidence sufficient to justify the extraordinary relief he sought. He failed to do so, and so he lost. He is not entitled to a second bite at the apple simply because the chancellor’s ruling “failed” to discuss faсtors from an opinion that no one ever mentioned.
¶28. There appear to be unresolved property and/or estate issues related to the McGriggs family land. But those must be addressed outside of this case. This case involves only a petition for an order to exhume a body. Lee presented no evidence that would warrant such an order. Accordingly, the chancellor correctly denied his petition, and we affirm.
¶ 29. THE JUDGMENT OF THE CHANCERY COURT OF CLAIBORNE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
Notes
. "Clearly, a letter is not an affidavit,'' Potter v. Hopper,
. "An affidavit is ‘[a] written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the рarty making it, taken before a person having authority to administer such oath or affirmation.’ ” Wilcher v. State,
. There is no proof of service in the record. The court questioned Mac and Lenora Wilkes about this on March 11. Mac said that he had received the petition by certified mail, which is not valid service on an in-state defendant. See Triple C Transp. Inc. v. Dickens,
. An Attorney General’s opinion is not binding but may be persuasive. Miss. State. & Sch. Employees’ Life & Health Plan v. KCC, Inc.,
Dissenting Opinion
dissenting:
¶30. I respectfully dissent frоm the majority’s decision to affirm the chancellor’s judgment dismissing Lee McGriggs’s petition to exhume or disinter the body of Alfred McGriggs. The chancellor failed to consider the Hood factors in determinating whether Alfred’s body should be removed and reintered; as a result, I would reverse and remand the chancellor’s judgment.
¶ 31. Lee filed the petition to exhume or disinter Alfred’s body from the Sampson McGriggs estate in Claiborne County and relocate it.
¶32. This appeal addresses whether the chancellor erred in failing to grant Lee’s petition to exhume his brother Alfred’s body from his burial site on their parents' estate. Lee and Alfred’s parents, Sampson and Lenora McGriggs, had thirteen children and owned a sixty-two-acre farm. Sampson, Lenora, and two of their children, all of whom predeceased Alfred, were buried in the Seven Star Cemetery in Claiborne County.
¶ 33. The record reflects that Mac and Lenora Wilkes sought no approval from the Claiborne County Board of Supervisors or other siblings prior to burying Alfred on the family’s estate. Both parties represent that they own the property, along with a total of thirty-six heirs.
¶34. Lee filed a pro se petition in chancery court to exhume Alfred’s body from the Sampson McGriggs estate and relocate it, and to protect the property rights of the heirs and descendants. The record reflects that the following family members and asserted heirs sent letters to the chancellor also opposing Alfred’s burial on the family estate: Hattie McGriggs Jones, Alfred’s sister; Kenneth McGriggs, Alfred’s son; Karla McGriggs, Alfred’s daughter; and Frieda McGriggs, Alfred’s widow. The record reflects that these family members and heirs were not consulted with prior to the burial of Alfred on the Sampson McGriggs estate.
¶ 35. At the hearing on Lee’s petition to exhume Alfred’s body, the following family members and asserted heirs testified before the chancellor that Alfred wished to be buried on the family estate: Mac McGriggs; Lenora Wilkes; Frank McGriggs, Alfred’s brother; David McGriggs, Alfred’s brother; and Mary McGriggs Moоre, Alfred’s sister. The chancellor ultimately denied Lee’s petition, finding section 41-43-1 inapplicable and also finding that Mac and Lenora Wilkes were not required to seek the board of supervisors’ approval prior to burying Albert on the family’s estate. However, the chancellor failed to address Lee’s requests to protect the property rights of the heirs and descendants.
¶ 36. When reviewing a chancellor’s findings, this Court will not disturb those findings when supported by substantial credible evidence unless he abused his discretion, was manifestly wrong or clearly erroneous, or aрplied an erroneous legal standard. In re Spiers,
¶ 37. In Hood,
¶ 38. In Hood,
¶39. Lee argues that the chancellor erred in denying his petition to exhume Alfred’s body. Lee asserts that Mac and Lenora Wilkes violated the state’s statutory cemetery laws by burying Alfred on the Samson McGriggs estate. Furthermore, Lee argues that Mac and Lenora Wilkes are not the sоle owners of the Sampson McGriggs estate, ahd thus cannot make decisions of this magnitude. ’ The permission of the board of supervisors was not required to bury Alfred on private property. However, “[d]ue and proper regard for the property of another requires of any person, before he engages in the deliberate act of burying a body on land claimed by another, to take whatever precaution and safeguards as are reasonably necessary under the facts of that case to assure himself that he has the lawful authority to do so,” Welford v. Dickerson,
¶40. In his order denying Lee’s petition, the chancellor explained that section 41-43-1 provides that a person would need to seek approval from the county board of supervisors only if the person attempted to establish a cemetery within five hundred yards of a medical facility. The chancellor further clarified that the statute “does not state that an individual must seek approval from the board of supervisors if they intend to bury someone on private property[,]” and explained that the statute “does not serve as a directive to anyone intеnding to bury a body on private property.” In finding section 41-43-1 inapplicable, the chancellor did. not determine whether, based on the evidence presented, compel
¶41. However, Mississippi law recognizes that the conduct of burying a body on private land without the landowner’s permission “constitutes [a] statement slandering ... title. Slander of title may consist of conduct which brings or tends to bring in question the right or titlе of another to particular property.” Welford,
¶42. In Spiers, the Mississippi Supreme Court recognized that although “Mississippi has no precedent directly on point, ... it is not unprecedented to allow disinterment of a body so that those closest in kinship to the deceased can more easily visit the grave.” Spiers,
¶43. In this case; the chancellor'failed to consider the Hood factors in determi-
. Lee appeals pro se.
. Sampson died in 1994, and Lenora died in 1999.
. Lee submits that there are thirty-six “living heirs and descendants" to the Sampson McGriggs estate. Sampson and Lenora McGriggs had thirteen children. I note that Lee’s brief asserts that Mac and Lenora Wilkes do not own the farm, and are only heirs. ' ’ '
. The record reflect that Sampson and Lenora McGriggs acquired the properly at issue, in 1948. As stated previously, Sampson died in 1994 and Lenora died in 1999. See In re Estate of McCullough,
. In Mississippi Chancery Practice § 44:10 (2015), James Shelson explained:
The chancellor should consider the following factors in determining whether to permit a body to be moved after it has. been interred, and not merely whether the surviving spouse has a compelling reason for the reinterment:
(1) the public interest;
(2) wishes of the decedent, especially if strongly and recently expressed;
(3) rights and' feelings of those entitled to be heard by reason of relationship;
(4) rights and principles of religious bodies or other organizations that granted interment in the first burial site;
(5) whether consent was given to internment in the first burial site by the one claiming the right of removal.
Where a court is faced with the competing interest of the biological-parents of a deceased child, it should consider these factors, but each case must be determined on its own merits.
. "Courts of equity concern themselves with civil rights as well as property rights.” Smith v. State,