*1
Argued January Decided September 2009. *2 Robert, (The argued Gregory appellants Leonard the cause for Leonard, Finn, attorneys; Rotolo Low Mr. and William E. Reu- *3 telhnber, briefs). on the Baldwin, argued (Broderick, respondent Akin J. cause
Newmark, Grather, attorneys; & Mr. Baldwin and Martin New- brief). mark, on the opinion
Justice IlOENS delivered the of the Court. appeal, This which comes before the Court as of based on opinion dissenting Appellate judge, of the requires Division interpret provisions Jersey the Court to Cemetery the New -38, interment, Act of governing N.J.S.A. 45:27-1 to disinterment, 45:27-22, N.J.S.A. Specifi- and N.J.S.A. 45:27-23. cally, dispute, this surviving spouse between a decedent’s and resting place, children about question his final raises the statutory provision whether the surviving spouse that invests a interment, authority designate place with the absent a contrary will, written declaration in the decedent’s also affords spouse primacy demanding notwithstanding disinterment statutory language contrary. to the plain language
Because we conclude that the statutory provisions relating expresses interment disinterment that a each, regulatory applies different agree scheme we with the dissenting judge, appellate panel’s we conclude that materia, pan view, be read in provisions must majority in error. I. analysis are as follows. germane to our that are The facts Larry Sr. Marino married the decedent Joan Marino Plaintiff time, prior marriage, and from a he had two children At the 1982. decedent plaintiff. When four children with had he thereafter plaintiff, Nicholas with of his children two died in October four, all defendants Daniel, The other minors. were still marriage, prior children from his litigation, were the two Brett, plaintiff, Jennifer his children with and two of Larry Jr. and and John. relationship between marriage, the years final
During the deteriorated, although they had not had plaintiff and decedent will, contained Decedent’s which formally separated. divorced buried, appoint- to be concerning where he wanted no instructions Larry Jr. co-executors. to be his Larry and Jennifer ed Jr. co-executor, that, him as a attorney who advised with an consulted concerning the questions to decide he was authorized of decedent’s remains. wished to be that their father Jennifer believed
Larry Jr. and Dorothy, who is by defendant cemetery plot owned in a buried plot where That grandmother. and their mother dece- and is also near where eventually be buried Dorothy will Plaintiff, however, disagreed. already buried. dent’s father was *4 cemetery plot in a in the same to be buried wanted decedent She through her mother acquired decedent had that she and plot That eventually as well. to be buried intends where she away from forty feet plots located about family’s and is near her family’s plots. death, days parties two after meeting among the During a they had voted plaintiff that and Daniel told the adult children plot, in his mother’s father buried unanimously to have their there, rather than preference to be his arguing that it had been Plaintiff, however, plaintiffs family. with insisted that she and purchased decedent had plot, intending the other to be buried there, and that she did not want to be buried with decedent’s family. The children by pointing marriage countered out that the disintegrated had repeatedly and that decedent had told them and did, others that he not desire to family. be buried with her continued, disagreement As the children, group the same Jr., exception Larry with the again, voted with the result that they still were united in their view that decedent wanted to be buried plaintiff near his father. When asserted that she had the to decide as the spouse, Larry disagreed, Jr. telling her authority given decide was to him and Jennifer as the co-executors. In an effort to dispute, resolve the however, proposed defendants that decedent be buried so that plaintiffs body “stacked,” is, eventually could be buried on top Although of his. plaintiff defendants believe that agreed with proposal, plaintiff this Rather, insists that she did not. she Larry contends that Jr. threatened to bar her from the funeral home and the capitulate, services she did charge he denies. She asserts permit that she decided to place burial to take because she believed 27, 2005, she had no choice. On October decedent was plot buried owned his mother and near the one where his father was buried.
Eight burial, months after the plaintiff June filed her Complaint Verified and Order to seeking Show Cause authoriza- Chancery tion from the Division to disinter decedent’s remains rebury plot them in preferred. that she judge presided days over two hearings on During the issues. trial, numerous witnesses testified about the marriage state of the expressed and the desires decedent resting about his final place.
On November the trial court issued its opinion. written That decision rested on findings First, two essential of fact. court found that had not voluntarily agreed to allow was, decedent to be buried where he unduly pres- but had been *5 320 overwhelming. In that in under were give to circumstances
sured that believed persuaded the court was particular, be would prerogative to decide where decedent had defendants Larry threat Jr.’s acquiesced that she had because buried and Second, however, trial court her from the funeral. to exclude wanted his intention was that he that decedent’s clear found not want to be plot, he did buried near his father’s remains that, buried, not family, once he would plaintiff’s buried near remains disinterred. want his fact, began findings of the court the law these
Applying
to
anyone in
appoint
did
acknowledging that
decedent
not
because
remains, plaintiff,
his
his
disposition of
will to decide the
his
statutorily
do so. See
surviving spouse,
authorized to
45:27-22(a). Nevertheless,
primary
the court framed the
N.J.S.A.
act,
empowered
instead
being
initially
but
who was
issue
as
parties’
husband and
beloved
“whether the remains
as
question,
and relocated.” As to
father should be disinterred
45:27-23,
statute,
N.J.S.A.
identified the disinterment
the court
applied
how
controlling
it should be
statute and considered
matter.
the frame
Chancery
against
the matter
Division reviewed
injunctive
ordinarily applicable
requests
permanent
work
544, 556,
Shuster,
relief,
N.J.Super.
687 A.2d
v.
296
Paternoster
132-34,
Gioia,
v. De
90 N.J.
(App.Div.1997); see Crowe
330
(1982)
applicable to
(identifying
generally
standards
The
conclusion was based on its view
law,
of a
were relevant at common
see
wishes
decedent
Sherman,
638, 649-50,
N.J.Saper.
Sherman v.
330
750
229
A.2d
(Ch.Div.1999);
1028;
Felipe, supra,
N.J.Super.
239
at
570 A.2d
short,
1
recognized
Chancery
agreed
In
had
Division
defendants
permit plaintiffs remains to be stacked over decedent's when she dies. The
seventy-five percent
court therefore ordered defendants to bear
of the cost of a
give
prominence
headstone that would
suitable
when she is buried
contesting
Although
cross-appealed,
propriety
with decedent.
defendants
relief,
disinterment,
Appellate
reversed and
because
Division
ordered
it
-1(a)(2),
pursuing
appeal
right,
In
did not reach that issue.
their
as of
see R. 2:2
2:12-3,
question,
defendants did not seek certification on that
see R.
v.
State
Breakiron,
591, 595,
(1987),
323 other, 45:27-22, sively and the N.J.S.A. regulating interment. Moreover, explained, as he because the trial court’s decision was based on substantial credible evidence in the record and resulted proper from the application legal principles relevant statutory provisions, it was entitled to be affirmed. dissent,
Based on the pursued appeal defendants their to this 1(b); VI, 5, right, Court as of § see N.J. Const. art. R. ¶ 2:2-1(a)(2). question Because the before the Court is limited dissent, Judge issue raised in Stern’s we need not recite the arguments parties made they the briefs have filed.
II.
Although
suggestions
there are some
that at common law the
burial
bodies was
duty devolving
considered to be a
on certain
decedent,
persons related to the
Toppin Moriarty,
see
v.
59 N.J.
(Ch. 1899)
118-19,
Eq.
The relating earliest statutes to designed burial were large in permit measure to cemetery associations, and, creation of them, through regulate to cemeteries. See id. at 254-57. As a result, they referred to only passing. interment See id. at 257- (restricting place cemetery of burial to plots in person which “a having at the time of such decease an interest ... or the relative interest, person of having some such or person, the wife of such or relative.”). her 1851, Cemetery The Act of and its several amend ments, see, e.g., 1883, Cemetery 1883, 135, 3; Act of L. § c. 1890, 1889, 3; 1889, 269, Cemetery § c. Act of
Cemetery L. Act of 68, Title 8 of 1890, 2, subsequently codified as § c. which were L. -22, Statutes, of interest. 8:1-1 to are historical Revised R.S. questions However, light present on the they do not shed because further. appeal, not address them by this we need ed to revise the stat- Legislature began to consider whether Our 1950’s, largely response to relating cemeteries utes to operations. As- cemetery See abuses in growing concerns about Mausoleums, Report sembly on Cemeteries and Final Committee 1952). (Mar. 31, many years study following of In at 3-4 debate, repealed of the earlier Legislature all statutes scheme, statutory as entirely codified them new replaced with an significant dispute is before 8A. The 1971 enactment Title current predecessors included the to the Coui’t because it this governing and disinterment. statutes interment enacted, provision as provided the 1971 interment originally As follows: unless light of of a the remains deceased disposition person, control given a of competent the decedent or court by other directions have been following
jurisdiction shall order: be surviving a. The spouse. surviving majority surviving or the child children the decedent A
b. one. or the decedent. c. The parent parents (he majority if no and sisters of decedent child parent d. A of the brothers living. consanguinity. according degree to the Other next of kin e. 8A:5-18) 2003).] (codified
|L. (repealed § at 1971, c. 8A:5-18 N.J.S.A. statute, therefore, among hierarchy created The interment be determining which of them would purposes for survivors same of remains. At the control authorized time, however, carrying out expressed preference the statute by referring wishes of the decedent only authorizing give others to act decedent to directions the absence of such directions. Ibid. *9 statute,
The disinterment also as first enacted different, markedly providing part in relevant as follows: (he therefrom, Remains interred in a lot in a be removed with cemetery may consent of the and a written consent of the owners of the lot cemetery company (he age. and of the if of full If consent of children, such spouse any obtained, or of the cannot be of the New person cemetery company permission Board shall be sufficient. Jersey Cemetery (codified 8A:5-20) 2003).] (repealed § [L. c. at A. 1971, 333, 8A:5-20 N.J.S provision, although making any expressed That no reference to decedent, preference permitted only of the disinterment if the children, others, surviving spouse among agree. could Ibid. mechanism, sentence, quoted The alternative contained in the final authority Cemetery which had vested grant Board to permission in the event that one or more of those individuals did consent, by statutory was deleted amendment in 1973. See (codified 8A:5-20) § L. c. 8A:5-20 (repealed at N.J.S.A 2003).
Early Jersey the New Law began Revision Commission study 8A, provisions concluding then codified in Title July 1998 that the statute was in need significant of a overhaul. Comm’n, N.J. Law Report Relating Revision Final to Cemeteries 1998). (July Characterizing at being compre- Title 8A as neither consistent, hensive nor the Commission criticized it for its lack of clarity organization. It Ibid. therefore proposed that substan- changes tial statutory be made to the scheme in remedy order to perceived the flaws the Commission were in need of correction. Court, significance Of to the issues before this the Commission proposed changes three to the interment statute. Id. at 17 Cem:5-7). First, (proposing provision new denominated it recom- language permitting mended that give a decedent to directions concerning explicit interment be altered to make it that such dispositive. directions support would be Id. comment at 17. In suggestion, expressed the Commission its view that intention that always a decedent’s directive would be enforced had statute, implicit been appropriate but reasoned that it was part provision’s to make it command. Ibid.
326 however, that,
Second, in order the Commission recommended effective, in required to be the directive would be to be “signed specify a that would the form of directive” decide. designate who would be authorized to or would another recommendation, In the Commission making at 17. Id. inter- appellate a court decision had recognized that then-recent a dece- existing permit the effectuation of preted the statute to remains, although that relating disposition of dent’s directions to 17; Bruning, writing. not in See id. comment at directive was 429-31, N.J.Super. (concluding A.2d 164 supra, 300 at required interment dece- common law nor 1971 statute neither considered). Although to be in order to be dent’s intent written stringent “more than that acknowledging proposal was its law,” adoption of the re- recommended current Commission further N.J. Law writing explanation. of a without quirement Comm’n, supra, at 17. comment Revision Third, that the in the 1971 suggested reference Commission of a to direct to the alternative mechanism court order statute explained its disposition be deleted. Ibid. As Commission comment, priorities among the designates the as the statute disposition. Ibid. will be authorized to determine survivors who order, case, court to an it would being the were the issue That hierarchy, making enforcing statutory reference simply be unnecessary. order Ibid. a court governing changes provision to the Although suggesting no disinterment, of a new recommended the addition Commission section, new relating (proposing remains. Id. removal of at Cem:5-8). section, rele- That which is not provision denominated us, required permit precondition the issues before vant to remains, on removal remains buried authorized removal of but cemetery. reburial in a Ibid. property purpose for the private immediately upon act the Commission’s Legislature did not However, enacting Cemetery Act of recommendations. -38, and which is codified at N.J.S.A. 45:27-1 now force, currently Legislature statute guided part by the Commission’s recommendations. Act, example,
The 2003 change includes the that the Com statute, mission recommended to the interment which would re quire decedent, designation by a written Legislature’s but the specifically requires amendment designation that such a be includ ed in a will as defined N.J.S.A. 3B:1-2. See N.J.S.A. 45:27- 22(a). place In permitting general the decedent to make a *11 remains, disposition directive as to the provision of the permits the appoint the decedent person a to be authorized to act in his or place. Notably, her Ibid. the Act does not limit a decedent’s person, choice of such a “permitting responsible someone to be disposition the of remains outside of the usual lines of next of kin.” Committee, Senate Commerce Statement to Senate Bill No. 1992 (Jun. 12, 2003). Moreover, spite in of the Commission’s belief that the reference to a court order would unnecessary, be the current authority statute retains the vary of a court to from the strict hierarchy that the statute would otherwise enforce. N.J.S.A. 45:27-22(a). is, pertinent
That in part, the interment provides: statute2 now a. If a in decedent, a will as defined in N.J.S.A 3B:1-2, a appoints person control the funeral and of the disposition human remains, funeral and disposi tion shall be in accordance with the instructions of the so person A appointed. so shall person appointed not have to be executor of the will. The funeral and disposition occur may prior of the will. .. If probate the decedent has not left a appointing will a to control the funeral person of the disposition remains, right to control the funeral and of the human remains shall inbe following given order, unless other directions have been a court competent of jurisdiction: (1) surviving The surviving of the decedent spouse or the domestic partner. (2) majority surviving A of the adult children of the decedent. (3) surviving or parent parents decedent. (4) majority A of the brothers and sisters of the decedent. 2 The interment statute surviving was amended twice in 2005 to include a language domestic designating surviving partner a previously as spouse among the first survivors who be § authorized to act. See L. may 2005, 324, c. (eff. 2004); (eff. 2006). 13, § 2005, 331, L. c. Apr. Jan. degree consanguinity.
(5) according to the kin of the decedent next of Other written (6) living on the a relatives, may rely cemetery If are no known there acting on behalf of the decedent. other person authorization any added) (emphasis [Ibid. ] any changes suggested that had Although the Commission statute, part as the disinterment language of made to the terse be a new Legislature added Cemetery Act of part, In 45:27-23. N.J.S.A. disinterment. provision governing statutory earlier sections compilation of provision is a scheme, of the Commission recommendations along with the certain circum- remains under relating to removal of new section face, however, enacting the disinter- On its be added. stances statute, Legislature created the 2003 provision ment that is fundamental- decision-making in disinterment hierarchy for governs interment. ly from the one different pertinent provides relating disinterment The 2003 statute part as follows: section, order, human to court in this pursuant otherwise provided a. Except interment unless: space from an
remains shall not be removed (1) the interment space and the owner of adult children spouse, writing; authorize removal (2) board the local disinterment issued permit a State removal is authorized by *12 health; (3) feasible. that removal is finds cemetery [Ibid.] clear differ- several provision demonstrates language of the interment. governing and the one this statute
ences between interred, remains, First, once strong preference is a there Second, authority to disinter is Ibid. not be removed.” “shall alone, to the given rather is spouse but vested in the the interment the owner of children and “surviving spouse, adult jointly and in both authorization give their space,” who must manner Third, act in a of the court to power writing. Ibid. Ibid. expressly preserved. contrary to the statute underpinnings to serve of the historical explanation With this meaning and turn to a consideration background, we our gwerning statutory language application and its to intent of the dispute before us.
III.
statutory interpretation
“is to
The role of the Court
Legislature’s
determine and effectuate the
intent.” Bosland v.
(2009).
Inc.,
543, 553,
Dodge,
N.J.
In addition these extrinsic sources to assist discern- *13 intent, ing legislative variety statutory there are of rules 330 useful, upon of which we are called may be one
construction
analysis
lynchpin of the
used
appeal. The
in this
consider
application of the
panel was its
majority
appellate
interpreting sections
statutory
that calls for
maxim of
construction
the same
time or included within
passed at the same
of a statute
pari materia.
by reading them in
Act
they
pari
in
materia when
are considered to be
“Statutes
thing,
persons
the same class of
person or
relate to the same
object.” 2B Sutherland on
purpose or
things, or have the same
(7th
2008) (footnotes omitted);
§
ed.
Statutory
51:3
Construction
(2006).
453,
omitted).]
maxim,
to assist
tools used
courts
this
like other
Resort to
intent,
helpful
Legisla
legislative
when
divining
them
is,
pari materia are to
“[s]tatutes
That
intent is unclear.
ture’s
helpful
resolving
doubts or uncer
together when
be construed
re Return
legislative
intent.” In
and the ascertainment
tainties
(1997);
108, 115,
J.W.D.,
A.2d
see
149 N.J.
Weapons to
Febbi,
(stating
Legisla
Our review of the interment and disinterment statutes leads majority us conclude that the appellate panel did that, just adding concepts latter, from the former into the when the words themselves make clear concepts that those were not intended to be In attempting there. harmony, to find majority panel overlooked the Legislature obvious intention of the approach interment and differently, disinterment with the result that it substituted its view of what would be a consistent scheme for the entirely rational Legislature choice of the to view the circumstances upon attendant differently disinterment from those that are relevant interment.
That there are differences between disinterment, interment and practical both as a matter statutory designed scheme dies, with, when begin To someone Legislature, is obvious. on may who decide demarcation between the need for a clear might given to preference to be those who and the order of burial corollary paramount. The in the matter is have a voice otherwise avoid, quickly, toor end for an mechanism to need efficient equal might disagree is of who almost disputes among those *15 significance. in 2003 makes Legislature’s amendment to the statute
The dispute little room for particularly its intention to afford clear Although embracing the in first instance. about interment the desiring disposition of his or to decide the that a decedent notion expression have of intent effectuat- remains to that her is entitled ed, doing in the so a clear effort Legislature limited means of the By the delays. requiring and that prevent disputes to both in a by writing that the be writing requiring and directions be in will, of the adopting the recommendation Commission rather than Legisla- writing acceptable, the any form of that would have made delayed possibility that burial would be greatly ture reduced the preferences. the battled over while survivors give never to a say the can rise That is not to statute delay the of a which will to interment dispute, effect of be by proffering may disagree more Survivors decedent’s remains. testament, and an individual’s last will than one document as Moreover, immediately apparent. validity might which be hierarchy a clear to be spite Legislature’s effort to create will, disputes arise might a in a in the of directive followed absence if, majority surviving spouse no no example, there is agree. Legislature’s The among children who adult deletion of the lan- rejection of recommended the Commission’s recognition its orders demonstrates guage relating to court to, may, disputes. to empowered is act resolve the court however, token, avoiding By the the considerations about same authority decision-making delay designations of creating or clear largely are absent germane disinterment and therefore are not quick expedi- for a statute. The from disinterment need identify is to act vanishes once ent method to who authorized create, as in the inter- remains have been buried. effort statute, plain it will priorities ment a scheme of so clear and rarely plays the courts dispute requiring lead to a intervention Legisla- arising That the dispute no role over disinterment. designed read in accordance with their ture these statutes be plain apparent. terms could not be more Legislature’s of the that the disinterment stat-
Evidence intent separate plain found in its ute be read as a mechanism can be language, legislative history, and in its common sense First, application. express presumption disinterment remains, interred, By statute is that once shall not be removed. limiting specific disinterment to the circumstances set forth order, preference Legislature statute court is Second, emphasized. comparing prioritization further the two schemes, primacy the disinterment statute erases the surviving spouse. interment statute affords to the That decision empower single authority, voice with the absence of a will, replaced directive contained in a in the disinterment statute *16 requirement spouse with the that the and all of the adult children, children, merely majority not jointly a of the adult Third, limit, practical concur. the effect of the statute is to rather disinterment, expand, practice than the in effect to embrace a undisturbed, general agreement by the dead should rest making it more difficult to demand or disinterment to achieve it.
IV. clear; The differences between these Iw’ostatutes are the Legislature’s equally light intent clear. Viewed in of those differences, role, question any, before this Court is w'hat a play upon decedent’s intent should wiien a court is called to decide dispute question about disinterment. Our answer to that must begin comparative with approaches by evaluation of the used Chancery appellate panel’s majority. Division and the findings only factual that bear Chancery made two Division First, plaintiff did court found that us. question on the before family’s bury decedent his agree to the decision to willingly not Second, the by defendants. her will was overborne plot, but that he buried with preference was that be that decedent’s court found buried, and, remains not be having that his family been his findings supported sufficient those are disturbed. Because record, they entitled to deference are evidence credible Resort, Inc. v. Investors appellate courts. Rova Farms from all (1974). findings Co., To those 323 A .2d495 Ins. majority to be appellate panel’s found fact that the we add another Plaintiff, as the critical, undisputed in the record. which is plot in the near her buried surviving spouse, wanted decedent he was buried. family rather than where statute, the disinterment evaluating against facts In those para wishes were that decedent’s Chancery Division concluded enforced, regardless plaintiffs con entitled to be mount and acquiescence to the regardless of whether her trary desires Appellate Division’s given duress. The original burial was under legal analysis, obligated to that not to defer majority, which was Comm, Manalapan, 140 N.J. Twp. Manalapan Realty, L.P. v. (1995), disagreed with that conclusion. 658 A.2d Instead, panel read two factors into majority of the analysis. statutory construction through its disinterment statute it First, preference, because panel concluded that decedent’s writing, entitled to be testamentary was not in a was not contained Second, plaintiff, as the it reasoned that because considered. make the interment deprived surviving spouse, was instance, right required that vindication of her in the first decision dispute. prevail her desire disinterment majority’s Appellate Division persuaded We are language of of the statutes. The reasoning interpretation its *17 45:27-23, statute, legislative prefer- expresses a see N.J.S.A. so, that not the disinter- Even were against ence disinterment. surviving spouse’s desire is plain that the makes it ment statute fact, paramount. In her statutory status in the decision- making reduced, hierarchy is position having from a pri- mary inter, authority to sharing authority to one of to disinter equally with all adult children.
Moreover, we are confident language that the absence of disinterment statute concerning the court’s consideration of the preference Legislature not evidence that the intend- requirement ed that the wilting of a that it added to the interment statute apply. would On the contrary, very different circum- disinterment, stances of preference practice that the be limit- ed, the alteration in statutory scheme, decision-making and the power inherent of the court equity to do all militate in favor of permitting wishes, consideration of the decedent’s however ex- pressed. large part,
In the majority appellate panel viewed the matter as plaintiff one in which wrongfully was deprived of her statutory right to place have decided the of interment in the first instance. Seen light, in that panel concluded that she was entitled to disinterment as a remedy injustice. Likewise, for that dissenting our colleague reasons original that the interment was wrongful and equity We, demands that it be undone. howev- er, disagree. with, begin To the factual record suggest does not intentionally defendants knowingly deceived con- cerning who was authorized undisputed to act. The evidence is that one of sought, received, the co-executors advice from an attorney rights. about their Although incorrect, that advice was it was their mistaken belief and their unanimous view of their late desires, strongly expressed father’s animus, rather any than evil that motivated them to act. case,
Even if that were not nothing in the disinterment suggests statute that it is intended to remedy, be used as a even for deprived one who place. inter the first Instead, to the Legislature extent that the any provision made circumstances, relief in such expressed it is in the interment provision statute’s making a remedy civil against available one *18 45:27-22(d) effects interment. See N.J.S.A wrongfully who disposi for the ... (deeming “signs who an authorization that one asserted; truth of facts authoriz tion of human remains” warrants statement). warranty false ing sounding in of claim breach remedy now be available have been or would would Whether Court, we therefore do not plaintiff not before this address it further. matter, Chancery equities Division considering
In yardstick for includes no recognized the disinterment statute between and decedent’s apply dispute court to the exercising equitable powers, the Chan- surviving In its children. giving in favor cery was entitled to strike balance Division Although doing in so the preference. clear voice expressed its view that decedent’s wishes inappropriately court of the “paramount” importance, the correctness should be of say, thereby That is to when is not diminished. court’s conclusion statute, the court was in with the disinterment viewed accordance along with those of all weigh the views of decedent entitled to the survivors. record, we need not presented
In the this circumstances Chancery expression of its belief Division’s consider whether was to be accorded preference alone entitled that decedent’s legal The importance invalidates its conclusion. “paramount” undisputed preference about burial attributed record is alone; preference of all rather it also the decedent not his was children, spoke with a unified voice. who adult context, plaintiffs contrary preference was insuffi- Seen as a of law. cient matter
V. Division is reversed. judgment Appellate RIVERA-SOTO, dissenting. Justice body, of a proper initial interment If this case involved a disinterment, accord request I would be full followed Rather, majority’s analysis with and conclusions. It does not. represents wrongfully this ease the ratification aof result ob By appeal right resulting tained. an from dissent Division, VI, V, ¶ 1(b); 2:2-1(a)(2), § Appellate N.J. Count. art. R. *19 are called Viewing we on to review such eondemnable behavior. narrowly, majority this case and that endorses rewards behav ior. That I cannot do. plaintiff validly rights
Because statutory never waived her and original procured by internment here was either fraud or unambiguous legislative mutual mistake in violation of clear and correct, dictates, majority’s reasoning, albeit is irrelevant. Fui'ther, by majority the result reached wrongdoer, rewards a lengthy equitable result that runs counter to this Court’s tradi- and, importantly, tions obligations. more its fundamental For reasons, substantially those clearly and for the reasons so convincingly presented opinion by Judge in the Miniman on behalf majority Appellate of a panel, respectfully Division I dissent.
I. decedent, Marino, Sr., Plaintiff Larry Joan Marino and the L. twenty-three time, were years. During married for over that plaintiff Larry prior marriage, raised Sr.’s two sons from a Larry Brett, own; they Jr. and as if plaintiff were her and decedent also own, Jennifer, John, Daniel, had four children of their and Nich Sr., Larry age forty-nine, olas. then died at home on October death, Larry 2005. At the time of Sr.’s all of the children save for Nicholas were adults. earlier, years plaintiff
Several purchased and decedent had cemetery plots plaintiff planned where and decedent to be buried. plots Those were in cemetery plaintiffs the same where both family and family plots; plaintiffs decedent’s had their own personal plots purchased plaintiffs through were moth- er and were plaintiffs family’s located somewhat closer to plot. death, Shortly Larry although after Sr.’s Larry Sr.’s Will remains, of his the children no mention made father buried in his unilaterally that their should be determined plaintiff no room when she plot, where there would be parents’ entreaties, plaintiffs the children claimed Despite emotional died. only paternal plot; bury father they had voted their grave they was father’s plaintiff that their accommodation offered on deeper plaintiff could “stacked” dug be buried would be so acquiesced in this According plaintiff, she decedent’s coffin. Larry Jr. bluntly was told arrangement under duress: she estate; executors of decedent’s and Jennifer were the named bury Larry to the Sr. was reserved the decision where to executors; plans, to consent to the children’s and that she failed services, viewing, her plaintiff would be barred from husband’s later, brought in Chan- Some an action and burial. time statutory right where her cery vindicate her determine buried, by to her to be denied husband was court, Appel- reinstated Chancery to her children and Division, again from her stripped but this Court. late
II. A. straightforward. The citizens governing facts is The law those state, Legislature, speaking through the have decreed of this here, when, as appointing a control the funeral person
the decedent has left a will the of the the to control funeral and disposition of remains, following been order, be unless other directions have human remains shall jurisdiction: given of a court competent (1) surviving surviving decedent or the domestic partner. The spouse (2) majority surviving A adult children decedent.
(3) surviving of the decedent. parent parents (4) majority of the decedent. A brothers and sisters (5) according degree consanguinity. kin of next of the decedent Other (6) living on the written relatives, are no cemetery may rely If there known acting other on behalf of the decedent. authorization any person 45:27-22(a).] [N.J.S.A. unambiguous passage, In this clear and Jerseyans New have made judgment a decedent does not in set forth his Will remains, falls, dispose where and how to of his that decision order, persons those Legislature specified. on has First and sum, then, primary among surviving those spouse. In if a testamentary decedent fails to make a disposition of his remains surviving spouse and his decides where and how those remains are handled, to be that decision uniquely is both that of the and, spouse point, more to the final. happened According
That is not what here. plaintiff, she was by Larry informed Jr. that he and his half-sister Jennifer were the designated that, therefore, executors of the decedent’s estate decision, where and how decedent was to be buried their that, theirs alone. Plaintiff although piteously also testified she pleaded that decedent be plot buried she and decedent had purchased precisely purpose, acquiesced allowing she duress, decedent to be family’s plot only buried his under as she was threatened that she would be excluded from her husband’s services, viewing, according Jr., and burial. Larry Even bury decision to parents’ family his father in plot his was one children, reached vote of the completely disregarding the who, wishes of his tellingly, father’s widow also was the woman age who raised him from five as if he were her own child.
B. circumstances, In any those plaintiff claim that purportedly waived her sole and statutory right exclusive to make the inter- ment concerning decision her unworthy husband is of credence. agreed All witnesses consistently maintained that she bury wanted to her plot they husband in the purchased had *21 together, and that grudgingly she conceded to the burial arrange- by ments foisted on her wrongful right. executors’ claim of Tn context, that stark it plaintiff cannot be said right that waived the exclusively granted 45:27-22(a). by to her N.J.S.A. We have clear, made again, time and time that 340 am) right.” Knorr of a known “[w]aiver is the intentional voluntary relinquishment (2003) (citing & W. Title Guar. 178 N.J. 794] A.2d Smeal, Jersey v. 169, [836 177 (1958)). See also Co., v. Indus. Trust 27 N.J. 144, [141 782] 152 A.2d Co. (2008). N.J. It is Co., N.J. Ins. 72, [948 600] 89 A.2d Realty v. Title 195 Shotmeyer knowledge full “[a]n that waiver to have effective requires parly beyond question inlen[d| Knorr, N.J. rights.” rights legal those 178 supra, and to surrender of his & 27 N.J. at 153 [141 Co., Title Guar. (citing Jersey supra, [836 794] 177 A.2d W. at 782]). of hut, instead, A divined must he product
A.2d waiver cannot be objective be “The to waive need not stated expressly, provided intent proofs: right it, knew of the and then abandoned show that the clearly party circumstances N.Y. v. (citing Ibid. Indem. Corp. design Merchs. or indifference.” either by of (App.Div.1961), Eggleston, N.J. 114 206] [172 A.2d 37 N.J.Super. affd, 235, 68 254 (1962)). doubt, as room for [179 505] That benchmark standard leaves little A.2d decisively.” waiving right must do so and “[t]he clearly, known unequivocally, party Planning Bd., (citing Chevrolet, Inc. v. Brunswick Twp. id. Country of N. Ib (App.Div.1983)). See also Shotmeyer, 376, 960] 380 A.2d [463 190 N.J.Super. Knorr, (quoting supra). N.J. at 89 [948 “waiver 600] Specifically, 195 A.2d supra, knowledge surrender; an waiver a full and intentional ‘presupposes ” given under a County of fact.’ cannot be on consent mistake predicated (1998) (quoting W. Fauver, Jersey Morris v. N.J. [707 958] A.2d 104-05 782]). Co., & 27 N.J. at 153 [141 A .2d Title Guar. supra, (2008) (Rivera-Soto, X, Milek, v. 197 N.J. 63-64, A.2d [Sroczymki dissenting part).] concurring in and part voluntary plaintiffs or nothing there was intentional That made executors or to the burial demands abdication Moreover, ques- beyond it also remains children is self-evident. sole, know it her plaintiff simply did not tion exclusive, how her statutory right to demand where and that, voluntary to be even her acts were husband was buried so intentional, they not in a known certainly respect were only separately aggregate, Taken either one right. begin to these facts not even conclusion takes form: do one a valid is needed order to constitute scratch surface what waiver.
C. her if it could somehow waived Even be said statutory right of her husband’s designate remains, any procured also such waiver was it is clear long “[ejvery in its most have the view that fraud fraud. We held obtaining an conception consists general and fundamental
341
advantage by
of some act or omission that
is
undue
means
good
of
faith.”
Jewish Ctr.
unconscientious or
violation
of
(1981)
624,
Whale,
falsity
seeks to
that a
constituted
fraud.
plaintiff
misrepresentation
prove
only equitable
Thus,
whatever would be fraudulent at law will be so
but the
equity;
equitable
goes
doctrine
farther and includes instances
fraudulent
which
misrepresentations
do not exist in the law.
(citations,
editing
624-25,
[Id.
521
marks,
at
432 A.2d
internal
marks
quotation
omitted).]
“requires
A
cause of action
fraud
the satisfaction of five
misrepresentation by
elements: a material
the defendant of a
fact;
presently existing
past
knowledge
fact or
or belief
falsity;
rely
defendant of its
an intent that
on the
statement;
plaintiff;
resulting
reasonable reliance
Land,
damages
plaintiff.” Liberty
to the
Mut. Ins. Co. v.
N.J.
186
163, 175,
(2006).
generally
A.2d
See
Gennari v. Weichert
(1997) (same).
Realtors,
Co.
An application principles even-handed of those to the circum- presented yields example equitable stances here textbook materially misrepresented that and children fraud: the executors authority to determine they they alone had the *23 remains; they that doing, intended father’s so of their reasonably relied on misrepresentation; plaintiff rely upon that and, the plaintiff was denied because misrepresentation; they purchased for that plot in the had bury her husband Furthermore, defendants cannot damaged. purpose, plaintiff was rely on known better than to should have claim that their mother instead, and, sought her own should have representations their that a utterly reprehensible notion Placing aside the counsel. affirmatively required to rebut grieving widow somehow to consult prancing children off demands of her authoritarian during window of time lawyer painfully in that narrow awith made, engages is clear: “One who plans are our law burial which however, have fraud, may urge that one’s victim should not 1,n. A.2d 521 Id. at 626 circumspect or astute.” been more omitted). (citation executors’ and children’s plaintiffs acquiescence to the
Because fraud, initial equitable decedent’s plans product was burial Hence, statutory require- legal of no effect. interment was trig- are not in N.J.S.A. 45:27-23 found ments for disinterment gered.
D. her plaintiff somehow waived be said that Even it could her husband’s designate disposition statutory right remains, plaintiffs acquiescence even if it could be said fraud, procured by there arrangements was not burial burial was plaintiffs consent to decedent’s can be no doubt that inopera- consent that renders that product of a mutual mistake tive. defendants, light most favorable
Viewing proofs that, decedent was when he discussed where Larry Jr. testified she, in visibly upset plaintiff, [because] she “was be buried with mother had fact, plots that her my ... father buried wanted them[.j” purchased for He noted that he “went to siblings [his] explained to them that [their father could be buried in his parents’ plot and not wished], where his mother and I widow/their wanted them to my decide on where ... going father was to be acknowledged buried.” He [plaintiff] “[a]t that time became upset again. looking any She was alternative to make this happen.” Larry Jr. also testified lawyer that he consulted with a that, before decedent’s funeral according lawyer’s to that opinion, Jr., executor, Larry had the authority to decide arrangements. decedent’s funeral triggered That statement following question and answer: Is it accurate to Q. that as a result of [that whatever say told lawyer] you, you
assumed for and control of the responsibility father’s remains? your A. Yes, sir.1 then, Jr., Clearly, Larry least, at the very operating under he, impression estate, as executor of his father’s was the *24 possessed one who power disposi- to determine the Also, tion of his father’s remains. he communicated that conclu- plaintiff, sion to whose reliance on that assertion is made all the more by reasonable the fact that it by was made the son she had raised as one of her own children age who, since he was five and grown man, as police was a officer in the municipality same which her husband had police. been chief of
Viewing those facts in their most
light,
charitable
plaintiff
both
and
“
laboring
mistake,
defendants were
is,
under a mutual
parties
‘both
laboring
were
under the
misapprehension
same
as
”
particular,
to a
Petrol,
essential fact.’ Bonnco
Epstein,
Inc. v.
599, 608,
(1989)
560 A .2d
(quoting
655
Beachcomber
Coins,
Boskett,
Inc. v.
N.J.Super.
166
party[.]’ (quoting Ibid. Restatement (1981)). core, 152(1) mutual § At its the doctrine of mistake assumption.” this erroneous requires parties that “the must share presence of mutual (emphasis supplied). Ibid. Because meeting has no minds mistake means that there been parties thereby, be bound neither sufficient to warrant by that to which no plaintiff nor defendants should be bound v. agreed. could have See Parrette properly party informed (E. A.1940) Co., Eq. 15 A.2d & N.J. Citizens’ Cas. when, ground is for reformation (holding that “mutual mistake contractually here, parties met but because the minds of the have parties written contract between the is of a mutual mistake the the actual wanting expression or execution to evince parties”). binding contractual intent
E. and the gauged, matter how actions executors No 45:27-22(a) clearly wrongful: and without were N.J.S.A. children places right to determine the reservation the exclusive end, solely In the it plaintiffs remains hands. voluntarily intentionally little that never matters it little that decedent’s initial right; a known matters waived fraud; and, procured by equitable it matters little interment was of a mutual decedent’s initial interment was result that, consequence net unless the inescapable mistake. voided and wrongfully procured initial interment of decedent is position they should have been in parties returned to the law, enjoy only wrongdoers this defendants-—the here—will *25 imprimatur their foul deeds. Court’s on entirely proud this contrary to Court’s That result sight must the fact that this traditions. One not lose of consistent seeking only equitable brought Chancery, in relief. action was Thus, fully to at law to applicable traditional maxims actions are be, measure, equity, large in i*elaxed in order achieve equitable acquire to actions at law defenses otherwise irrelevant
345
by
point,
equity
in
are controlled
vitality. More to the
decisions
‘jtjhe
explained
hands.” We have
the doctrine of “unclean
doctrine,
discretionary
part
which is
on
essence of
court,
clean
equity
in
must come into court with
is that a suitor
through
entry and
keep
hands and he must
them clean after his
Borough
v. Bd.
Chosen
proceedings.”
out the
Princeton
of
of
135, 158,
County,
Even so mundane a as a “[w|e lease, that, although commercial we have made clear are not eager impose marketplace!.,.] a set of morals on the there are apply ethical norms that even to the harsh and sometimes cut- Rac- throat world of commercial transactions.” Brunswick Hills Club, Assocs., Shopping quet Inc. v. Route 18 Ctr. (2005) (citation omitted).
230,
F. Jersey Finally, analysis must be tethered to New this Act), Act, (Cemetery 45:27-1 to -38. As Cemetery N.J.S.A. noted, Cemetery Act correctly “make[s] Appellate Division arrange- regarding funeral decision who shall make the decedent’s (citing writing.” S. binding, provided that the decision is in ments clear, panel (2003))(emphasis supplied). As the made No. 1992 Doc. Act, preferences are no Cemetery orally expressed “under the spouse may a burial site binding select longer aptly preferences.” It concluded inconsistent with those deprived the surviv- violated statute and adult children this “[t]he disposition of the remains right to determine the ing spouse of the that, “[ijnstead, the twenty-three years[,]” and of her husband by the bury plot father in a owned decided to their children right plaintiff wife had no of burial.” paternal grandmother where Chancery judge that this statute found “[t]he It further noted however, Chancery judge explained, violated.” It body and relocate the incorrectly “analyzed request to disinter cemetery under N.J.S.A. 45:27-23 without plot in the to another potential impact of N.J.S.A. 45:27-22 on consideration Because the disinterment bearing upon disinterment.” factors prohibit disinterments that 45:27-23—“does statute—N.J.S.A. preference expressed in a binding with even a are inconsistent will[,J” thus becomes whether panel “[t]he reasoned that issue preference can control the disinterment orally expressed an favoring removal when it essentially trump all of the factors the interment.” cannot control discharge fully authorized to equity court of “[a]
It noted that
among
jurisprudence. Chief
equity
sustain our
the maxims that
legal
has been
that which states wherever
these maxims is
stated,
or,
commonly
remedy
given
as more
infringed a
will be
*27
equity
wrong
will not suffer a
remedy.” (quoting
without a
In re
Moasavi,
112, 123,
N.J.Super.
(Ch.Div.2000)
334
plaintiff established cause for dearly removal that overcomes the pre- of nonremoval. sumption Appellate reasoning Division’s and conclusions are unassail- Therefore, judgment able. its should be affirmed.
III. validly Because never waived statutory rights; her original because the internment procured here was either fraud or mutual mistake in violation of clear unambiguous legislative dictates; because the result reached majority contravenes principles equity jurisprudence settled inexplicably rewards wrongdoer; substantially for the thoughtfully pre- reasons by Judge sented Miniman on majority behalf of a Appellate panel, Division I respectfully dissent.
Far LONG, reversal—Chief Justice RABNER and Justices LaVECCHIA, ALBIN, WALLACE and HOENS—6.
For RIVERA-SOTO—1. affirmance—Justice