LEE AUGUSTUS MCGRIGGS, SR. v. MAC ARTHUR MCGRIGGS AND LENORA MCGRIGGS WILKES A/K/A LENORA WILKES
NO. 2014-CP-01400-COA
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
12/15/2015
DATE OF JUDGMENT: 06/30/2014; TRIAL JUDGE: HON. E. VINCENT DAVIS; COURT FROM WHICH APPEALED: CLAIBORNE COUNTY CHANCERY COURT; ATTORNEY FOR APPELLANT: LEE AUGUSTUS MCGRIGGS SR. (PRO SE); ATTORNEYS FOR APPELLEES: MAC ARTHUR MCGRIGGS (PRO SE), LENORA MCGRIGGS WILKES (PRO SE); NATURE OF THE CASE: CIVIL - OTHER; TRIAL COURT DISPOSITION: DENIED APPELLANT‘S PETITION TO EXHUME A BODY; DISPOSITION: AFFIRMED - 12/15/2015
WILSON, J., 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“).
¶3. The case 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 Cemetery in Utica, 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 drafted for Sampson, but the will was never probated if it was even valid. Nor does it appear that there was ever a judicial determination of heirs. Lee says that there are thirty-six living heirs to the “Sampson McGriggs estate,” consisting of the
¶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. Frank McGriggs took primary responsibility for the upkeep and maintenance of the family property at differеnt times before and after their parents died. This required 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 acknowledgеd that he has not assisted with the upkeep or maintenance 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
¶10. Alfred died in Biloxi 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 thе cemetery laws of the State of Mississippi” and purportedly sought “the 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 “join[ed]” 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,1 and neither Hattie nor Bessie testified.
¶12. Lee subsequently filed letters that purported to be from Alfred‘s widow (Frieda McGriggs) and two children in New York. These three letters also purport to join in Lee‘s
¶13. The court heard testimony on March 11 and June 16, 2014.3 With the feuding siblings proceeding pro se and cross-examining one another and other family members, the chancellor had his hands full keeping order and avoiding detours into irrelevant family disputes. As a result of the chancellor‘s admirable patience, some pertinent facts did emerge, including those already noted above.
¶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
¶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
¶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, 357 So. 2d 135, 136-37 (Miss. 1978).” The dissent would send the case back to the chancellor for more “proceedings” “to determine if compelling reasons support Lee‘s request for relief or disinterment.” With respect, there is no reason to remand this case for more procеedings.
¶19. To 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 a petition to exhume a body:
[T]here [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 case [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 of those еntitled 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 are to be considered when appropriate to determining such question and its determination is particularly one for a court of equity. There is no rigid rule 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 and feelings of those entitled to be heard by reason of relationship or association.
Hood, 357 So. 2d at 137 (citations omitted).
¶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 uncontrаdicted 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.
¶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 debatable whether the record is sufficient even to identify the heirs or determine thе current status of
¶26. Thus, if the dissent wants to remand the case 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 bаsis in the evidence for the chancellor to do anything other than deny the petition. There could be no greater abuse of discretion than to order Alfred‘s body exhumed based on the paltry evidence that Lee presented at trial.
¶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 bеcause the chancellor‘s ruling “failed” to discuss factors 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.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE
CARLTON, J., DISSENTING:
¶30. I respectfully dissent from the majority‘s decision to affirm the chancellоr‘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.5 Lee‘s petition to exhume argued that his siblings, Mac Arthur McGriggs and Lenora McGriggs Wilkes, placed Alfred‘s body on the estate on January 25, 2014, in violation of
¶32. This appeal addresses whether the chancellor erred in failing to grant Lee‘s petition5
¶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.7 However, the record reflects no declaration of heirs in any intestate proceeding. No portion of the farm was designated as a cemetery, by deed or othеrwise. The record reflects that the land is still used as a farm, and cattle still graze on the land. The record also shows that Seven Star Cemetery is available for the relocation and reinterrment of Alfred and others in the McGriggs family.
¶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
¶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 Moore, Alfred‘s sister. The chancellor ultimately denied Lee‘s petition, finding
¶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 applied an erroneous legal standard. In re Spiers, 992 So. 2d 1125, 1128 (¶10) (Miss. 2008); see also Lenoir v. Anderson, 12 So. 3d 589, 592-93 (¶¶6-7) (Miss. Ct. App. 2009) (addrеssing whether the chancellor erred in adjudicating the rights of the parties relative to a private family cemetery created by the testator and conveyed under a cemetery deed).
¶37. In Hood, 357 So. 2d at 136-37, the Mississippi Supreme Court discussed the factors to be considered by the lower court when permitting the disinterment and removal of a body.
¶38. In Hood, 357 So. 2d at 136-37, the supreme court “adopted the ‘more compassionate
¶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 Sampson McGriggs estate. Furthermore, Lee argues that Mac and Lenora Wilkes are not the sole owners of the Sampson McGriggs estate, and thus cannot make decisions of this magnitude. The permission of the board of supervisors was not required to bury Alfred оn 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, 524 So. 2d 331, 334-35 (Miss. 1988) (citing Grisham v. Hinton, 490 So. 2d 1201, 1205 (Miss. 1986)) (internal quotation marks omitted).
¶40. In his order denying Lee‘s petition, the chancellor explained that
¶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 title of another to particular property.” Welford, 524 So. 2d at 334. The record reflects that the Sampson McGriggs estate heirs werе not consulted prior to Mac and Lenora Wilkes burying Alfred on the estate property. The record also shows evidence that many heirs
¶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, 992 So. 2d at 1130 (¶20) (citing Bradley v. Burgis, 25 So. 2d 753 (La. Ct. App. 1946) (widow allowed to disinter and move husband‘s body because it had become impossible for her to visit his grave without being confronted with hostility); Mallen v. Mallen, 520 S.W.2d 736 (Tenn. Ct. App. 1974) (disinterment and relocation of husband‘s bоdy from family plot allowed due to hostility between husband‘s family and widow)). The Mississippi Supreme Court in Spiers considered the Hood factors, as established in Hood, 357 So. 2d at 137, and the totality of the circumstances in finding that the chancellor‘s decision was not supported by substantial credible evidence. Spiers, 992 So. 2d at 1130 (¶21). The supreme court, in Spiers, specifically found that the Hood factors weighed heavily in favor of disinterment and relocation of the body where there was no consent to the first burial and also based on the right to be heard by reason of the relationship.9 Id.
¶43. In this case, the chancellor failed to consider the Hood factors in determinating whether Alfred‘s body should be removed and reintered;10 therefore, I would reverse and remand the chancellor‘s judgment. Accordingly, I respectfully dissent.
Notes
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
(4) rights and principles of religious bodies or other organizations which 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.