Pettigrew v. Pettigrew
56 A. 878
Pa.
1904
Check Treatment

Opinion by

Mr. Chief Justice Mitchell,

Whеn a man dies, public policy and regard for the public health, as well as the universal sense of propriety, require that his body should be decently cared for and disposed of. The duty of disposition therеfore devolves upon some one and must carry with it the right to perform. It is commonly said, being repeated from the early cases in England where the whole matter of burials was under the jurisdiction of the eсclesiastical courts, that there can be no property in a corpse. But inasmuch as there is a legally recognized right of custody, control and disposition, the essential attribute of ownership, I apprehend that it would be more accurate to say that the law recognizes property in a corpse, but property subject to a trust and limited in its rights to such exercise as shall be in confоrmity with the duty out of which the rights arise. Whether, *316however, the rights be called property or not is manifestly a question of words rather than of substance.

The general subject is treated historically with great learning and ability in Matter of Widening Beekman Street, in the City of New York, 4 Bradford, Surrogate Rep. 508, by the referee, Hon. Samuel B. Ruggles, whose report is a storehouse to which all subsequent discussions have resorted for materiаls. An exhaustive catalogue of the law literature on burials, etc., will also be found in a note to Johnston v. Marinus, 18 Abbott’s New Cases, 75. The principal judicial decisions on the subject are Wynkoop v. Wynkoop, 42 Pa. 293; Fox v. Gordon, 16 Phila. 185 ; Pierce v. Cemetery Co., 10 R. I. 227 ; Hackett v. Hackett, 18 R. I. 155 ; Secord v. Secor, 18 Abbott’s N. C. 78 n.; Weld v. Walker, 130 Mass. 422; Larson v. Chase, 47 Minn. 307; Johnston v. Marinus, 18 Abbott’s ‍‌‌‌​‌​‌​‌​​​​‌​‌‌​‌‌‌‌​‌‌‌​​‌‌​​‌​‌‌‌​‌‌‌‌‌‌​‌‌​‍N. C. 75; Renihan v. Wright, 125 Ind. 536 ; O’Donnell v. Slack, 123 Cal. 285; Enos v. Snyder, 131 Cal. 68; McEntee v. Bonacum, 60 L. R. A. 440.

It is not necessary here to go into a general discussion of the various questions raised in the dеcisions. They have been reviewed with admirable clearness and accuracy by Judge Thayer in Fox v. Gordon, 16 Phila. 185, supra. But certain deductions may be drawn and put into practical shape from the cases.

The right of control and disposition whether called property or not springs as already said from the legal duty or obligation. In Pennsylvania, as generally elsewhere, that devolves on the executor or adminstrator. The statute puts the duty of paying the decedent’s debts out of his assets, on his executor, and expressly names funeral expenses as first in the order of priority of payment. Prima facie, therefore, the duty to determine when, where and in what manner the body shall be buried rests with the executor or administrator. But his right is not absolute nor his judgment conclusive. The determination must rest as said in Fox v. Gordon, supra, “ upon considerations arising partly out of the domestic relations .... partly out of the universal sentiment .... that the dead should repose in some spot where they will be secure from profanation; pаrtly out of what is demanded by society for the preservation of the public health, morality and decency; and partly often out of *317what is required by a proper respect for and observance of the wishes of the departed themselves.” Under the statute in Pennsylvania the right to administration belongs first to the surviving husband or widow. To such survivor, therefore, belongs the right of control of the body for interment, and a waivеr of the right to administer will not include a waiver of such right of control unless it be express and absolute. In the exigencies of business and the interests of the estate it is not unfrequently desirable that a stranger, or evеn a creditor should administer, but no court would sanction a disregard by such an administrator of the wishes of a widow or even of the next of kin, as to the place and manner of burial.

How far the decedent’s own wishes or even his specific directions are to prevail must be regarded as unsettled. In Williams v. Williams, L. R. 20 Ch. Div. 659, Kay, J., held that the right of custody being incident to the duty of burial which is in the executors, a man in England “ cannot by will disposе of his dead body.” And in a note to a report of the same case in 21 Am. Law Reg. N. S. 512, Prof. Ewell seems to approve the ruling though he admits that it is of first impression. The case ‍‌‌‌​‌​‌​‌​​​​‌​‌‌​‌‌‌‌​‌‌‌​​‌‌​​‌​‌‌‌​‌‌‌‌‌‌​‌‌​‍grew out of the disinterment and crematiоn of the body by a stranger to the family, under written directions of the deceased, and with great respect for the tribunal I cannot help thinking that the decision was unconsciously influenced by the English conservatism in rеgard to burial, and the attendant reluctance to countenance in any way the innovation of burning. The clear trend, I think, of the American decisions, is to the contrary notwithstanding the apparent assеnt in Enos v. Snyder, 131 Cal. 68, w'here the cases cited do not support the dictum. See Fox v. Gordon, 16 Phila. 185, already cited: Pierce v. Cemetery Co., 10 R. I. 227; Johnston v. Marinus, 18 Abbott’s N. C. 75; Secord v. Secor, 18 Abbott’s N. C. 78; O’Donnell v. Slack, 123 Cal. 285; Lowry v. Plitt, 16 Am. Law Reg. N. S. 155, and note by Mr. Francis Rawle/ And whether the decedent’s directions are regarded as paramount or not it is agreed in all the cases that they are entitled to respectful consideration whenever the quеstion comes into court.

In the absence of a surviving husband or widow the wishes of the next of kin are entitled to be considered with varying weight according to the nearness of the kinship and the per*318sonal relаtions between them and the decedent. A more distant relative or even a friend not connected by ties of blood ‍‌‌‌​‌​‌​‌​​​​‌​‌‌​‌‌‌‌​‌‌‌​​‌‌​​‌​‌‌‌​‌‌‌‌‌‌​‌‌​‍may have a superior right under exceptional circumstances to one nеarer of kin, as was held in Scott v. Riley, 16 Phila. 106.

The foregoing observations relate chiefly to the first interment. A reinterment involving a removal to another locality stands upon a somewhat different footing and has been the cause of most of the litigation on the subject. The duties of the executor or administrator terminate with the first interment, and on the question of removal he is not a party in interest. The controversy, if there be one, must be between next of kin. The presumption is against a change. The imprecation on the tomb at Stratford “ curst be he that moves my bones,” whether it be Shakespeare’s own or some rеverent friend’s, expresses the universal sentiment of humanity not only against profanation but even disturbance. When a case comes into court, the chancellor will regard this sentiment, and consider all thе circumstances in that connection.

The case of Wynkoop v. Wynkoop, 42 Pa. 293, has been frequently cited, and is relied on by appellant here as deciding that the rights of the next of kin are superior to those of the widow. The reporter’s syllabus apparently goes that far, but it is much too broad and is an improvident generalization from the second conclusion of the referee in Re Beekman Street, 4 Bradf. 503 (quoted by Read, J.,), that the right “belongs exclusively to the next of kin.” But the Beekman street case was a claim by next of kin to be allowed to control the removal of a hody which had been buried more than fifty years and whose removal was madе necessary by the widening of a street through the churchyard. There was no widow living and the contest was an amicable one between the next of kin and the church to determine their respective rights. The referee held that in such case the rights of the next of kin were exclusive of those of the church, and it is said (Hackett v. Hackett, supra) that he added a note to his report explaining that his use of the tеrm next of kin had no reference to any rights of a surviving husband or widow. The Wynkoop case grew out of the attempt of the widow to remove the body of Colonel Wynkoop, a distinguished soldier, more than a yеar after it had been buried, as claimed, by her consent, with the *319honors of war, and in accordance with his known wishes, in the city of his home. What the case really decides is that the rights of the widow as administratrix endеd with the first interment, andas to her rights as widow the court was justified “in refusing permission to a removal under the circumstances.” The case is not authority for anything more.

The result of a full examination of the subject is that there is no universal rule applicable alike to all cases, but each must be considered in equity on its own merits having ‍‌‌‌​‌​‌​‌​​​​‌​‌‌​‌‌‌‌​‌‌‌​​‌‌​​‌​‌‌‌​‌‌‌‌‌‌​‌‌​‍due regard to the interests of the public, the wishes of the decedent and the rights and feеlings of those entitled to be heard by reason of relationship or association.

Subject to this general result it may be laid down first, that the paramount right is in the surviving husband or widow, and if the parties were living in the normal rеlations of marriage it will require a very strong case to justify a court in interfering with the wish of the survivor.

Secondly, if there is no surviving husband or wife, the right is in the next of kin in the order of their relation to the decedent, as children оf proper age, parents, brothers and sisters, or more distant kin, modified it may be by circumstances of special intimacy or association with the decedent.

Thirdly, how far the desires of the decedеnt should prevail against those of a surviving husband or wife is an open question, but as against remoter connections, such wishes especially if strongly and recently expressed, should usually prevail.

Fourthly, with regard tо a reinterment in a different place, the same rules should apply, but with a presumption against removal growing stronger with the remoteness of connection with the decedent and reserving always the right оf the court to require reasonable cause to be shown for it.

In the present ease the court finds as facts that when the decedent died he left a widow and one child, his next of kin. The child died about a year afterwards and was buried in a lot in another cemetery purchased by the widow. The daughter, though young, appears to have ‍‌‌‌​‌​‌​‌​​​​‌​‌‌​‌‌‌‌​‌‌‌​​‌‌​​‌​‌‌‌​‌‌‌‌‌‌​‌‌​‍had a sentiment on the subject and desired her father to be buried with her. Thе decedent was buried in a lot belonging to his father’s family, with the widow’s consent but whether her consent was more than for a temporary interment is disputed. Whatever may be the fact *320as to that it is found by the court bеlow that there is not room in the family lot for the burial of the daughter and the widow unless they be put in the same grave with the decedent, and the hostile feelings of the brother and sisters make it doubtful if even this privilege would be conceded. These facts more than justify the conclusion of the learned judge below that the right of the widow to remove the body to the new lot purchased by her for that purpose should not be interfered with.

Decree affirmed at costs of appellant.