131 Mo. App. 306 | Mo. Ct. App. | 1908
This is a suit in equity in which plaintiff prays that defendants be enjoined from entering upon Lot 131, Block 4, in Mount Hope cemetery in Jasper county and “from taking up or attempting to take up and remove therefrom the body of Charles Litteral or the casket and box in which said body is encased.” A temporary injunction was issued, and served on defendants and on final hearing, it was made perpetual. Defendants appealed.
Plaintiff lives at Carterville in Jasper county and
During the period covered by these events, defendant Pauline was traveling with her company in Mexico and did not learn of the critical illness and subsequent death of her husband until a week or more after his burial. She felt that his parents had withheld this knowledge from her purposely and hastened to the scene of his death. Arriving there, she notified plaintiff of her purpose to exhume the body and to remove it to
We approve the conduct of the learned trial judge in refusing to permit plaintiff to introduce evidence for the purpose of assailing the character of the young widow. We think all of the facts show beyond question that the marital relations between her and her husband remained unimpaired and normal to the hour of his death and that their frequent and, at times, prolonged separations were due to their financial necessities and not to the desire of either to live apart. This being true, it would have been contrary to all sense of decency and propriety for the courts to have suffered the character of the young woman to be attacked in a suit of this nature. As long as her hubsand was satisfied with her conduct, her marital rights continued and, as they remained unimpaired to the time of his death, her rights of widowhood could not be abated or affected by conduct Avhich might have given her husband cause for ending the relationship.
It is not shown that the widow has any other reason for the assertion of a right to remove the body than a desire to gratify her own choice of its final resting place. Therefore, the vital question for us to decide is this: Has a widow who has been denied by stress of circumstances the sad privilege of burying her dead the absolute legal right, afterward, to disinter the body from the place where it was interred in a proper manner by the next of kin, for the purpose of reburial in a place more to her liking?
At common law, neither the widow nor the next of kin had the right to determine where the body should be buried. Indeed, neither the law nor equity courts had any jurisdiction over the burial of the dead. That was a matter of ecclesiastical jurisdiction, and all disputes relating to it were settled by the ordinary. By the ecclesiastical law, every person had the right to be
In this country, where we have no ecclesiastical courts, burial rights and duties belong peculiarly to the cognizance of the courts of equity. [Weld v. Walker, 130 Mass. 422.] The only rights (if we may call them rights) left to the dead are, first, that of decent sepulture; to have the body decently covered-and consigned to earth from which.it sprung, and then the right to be suffered to rest undisturbed until the body shall have been resolved into its original elements. These rights impose a corresponding duty on the living, primarily resting on the surviving consort, or next of kin, to provide for the preparation of the body, the funeral and burial, and then the duty rests on all, including the courts, not to disturb the body except in cases of necessity or for some cogent reason which appeals strongly to human nature or to one’s sense of propriety. The imposition of the duty to bury the dead carries with it the conferring on the person charged therewith of such rights as may be necessary to a proper performance. In the sense in which the word “property” ordinarily is used, one whose duty it becomes to bury a deceased person has no rights of ownership over the corpse. But in the broader meaning of the term, he has what has been called a quasi property right which entitles him to the possession and control of the body for-the single purpose of decent burial. If the deceased person leave a widow, such right belongs to her in preference to his kinsmen, provided she be present to perform the duty for which the right is a mere handmaiden. If from absence or other cause she be disabled from performance, the duty
The judgment is affirmed.