65 Wash. 344 | Wash. | 1911
— Chauncey L. Wood went to the then territory of Dakota in the year 1877. He was a young man just entering upon the practice of the profession of the law. He finally settled at Rapid City, where he made his home up to the time of his death, which occurred in Seattle on January 16th, 1911. Mr. Wood left two sons, the issue of a former marriage. These sons are now residents of the state of South Dakota, and are the defendants in this proceeding. The first wife having died, Mr. Wood remarried in the year 1894. His widow, Bessie F. Wood3> plaintiff, survives him. Mr. Wood was a man of character, and was possessed of unusual ability in his profession, so
In 1905 Mr. Wood and his wife sojourned at Seattle while making a trip through the west. The climate and surroundings attracted Mrs. Wood, and she determined to make her home at that place. A home was accordingly purchased on Queen Anne Hill, and she has ever since, and is now, residing and intends to there reside in the future. Mr. Wood made occasional trips to Seattle; plaintiff says every year, but we think not more than three or four trips are shown by the record. Plaintiff made infrequent trips to Rapid City, but on such occasions rooms were taken at the hotel, although a pretentious home was maintained by Mr. Wood at Rapid City, which he occupied while his wife was in Seattle. This home was sold in May, 1910, for $8,000, and the money given to Mrs. Wood. The first wife, as well as two daughters by the second wife, are buried at Rapid City, though in different cemetery lots, neither of which was owned by Mr. Wood. In the political campaign in which he was engaged in 1910, the republican press charged that Mr. Wood intended to leave South Dakota and take up his residence in Seattle. This charge, which was manifestly grounded upon the fact of his wife’s residence and made for political purposes, was met by Mr. Wood, who said in all his public speeches thenceforth that he was in fact a resident of South Dakota, that he expected to spend the remaining years of his life there, and that he hoped to be buried at Rapid City, where he had spent his life, had accumulated his honors, and his children had been born. Private conversations of the same import are testified to by friends and acquaintances.
It is indicated that Mr. Wood at one time had some notion of moving to Seattle. Plaintiff so swore, and submits as a corroborating circumstance a quotation from a letter written in October, 1909, in which he says to the baby that he had sold the home in Rapid City, that he had no other home except the house in Seattle, and that he would come out and stay with his wife and baby “before so very long.” On January 3, 1910, he wrote: “I will get out of here so as to put in at least ten years of active work in Seattle before I sit down to contemplate myself, as the Arab does when he desires to appease the wrath of Allah.” On the other hand, his utterances in the gubernatorial campaign, to which we confess no great importance should attach, are strengthened by the tenor of his business correspondence between the time of his arrival in Seattle and the time he was taken to the hospital. Every letter offered — and there are a number of them —indicates an intention to return to South Dakota as soon as his wife’s health would permit, and in any event not later than the following March, and also a disposition to hold his grasp upon his personal affairs. There was a strong bond of sympathy and affection between the deceased and plaintiff, who now asserts her rights to direct the disposition of her husband’s remains. Defendants were preparing the body of Mr. Wood for shipment to South Dakota when they were
The rule, as quoted in 8 Am. & Eng. Ency. Law, pp. 826 and 836, is not denied. It follows:
“As a general rule, the right of burial and the right to select the place of burial rests in the absence of any testamentary direction on the part of the deceased, in the next of kin. But in the case of a deceased wife the right is in the husband rather than in her next of kin. And although the decisions are not entirely free from incongruity, it is now well settled that a widow is entitled to control the burial of her deceased husband as against his next of kin.”
But this rule is not universal. In fact, a review of the authorities cited in the briefs of counsel confirms us in the belief that no fixed rule can be laid down in cases of this kind; for while, as stated in Hackett v. Hackett, 18 R. I. 155, 26 Atl. 42, 49 Am. St. 762, 19 L. R. A. 558, the primary right to control the burial of a husband should be with the widow in preference to the next of kin, yet nevertheless the right is dependent upon the peculiar circumstances of the case. So it is asserted that the nature of this case is such that no hard and fast rule can be laid down, but the inherent equity of the case, to be gathered from all the attending facts and circumstances, should control the court’s decree. In Fox v. Gordon, 16 Phila. (Pa.) 185, the court said:
“If a dispute arises about it among relatives, as in the present case, it must be determined by principles of equity and such considerations of propriety and justice as arise put of the particular circumstances of the case. No general rule to be applied absolutely in all cases can be laid down upon the subject, for what is fit and proper to be done in each case must depend upon the special circumstances of that case. It is a jurisdiction which belongs to equity, and the chancellor will exercise it with great care, having regard to*348 what is due to the natural feelings and sensibilities of individuals, as well as to what is required by considerations of public propriety and decency.”
And, under the generally accepted rule, that a person can make testamentary disposition of his remains if considerations of propriety and decency do not intervene, it has been declared that, when otherwise doubtful, the chancellor should give heed to the wishes of the deceased if they can be ascertained: In Pettigrew v. Pettigrew, 207 Pa. 313, 56 Atl. 878, 99 Am. St. 795, 64 L. R. A. 179, it is said that the question whether the wishes or directions of the deceased should prevail against those of a surviving husband or wife is an open question. But the rule, or rather lack of rule, as we have stated it, is admitted. While in Thompson v. Deeds, 93 Iowa 228, 61 N. W. 842, 35 L. R. A. 56, it is said:
“It has always been, and will ever continue to be, the duty of courts to see to it that the expressed wish of one, as to his final resting place, shall, so far as possible, be carried out. In one viewj it is true it may not matter much where we rest after we are dead; and yet there has always existed, in every person, a feeling that leads him to wish that after his death his body shall repose beside those he loved in life. Call it sentiment, yet it is a sentiment and belief which the living should know will be respected after they are gone.”
Like expressions are found in the following cases, all of which sustain the principle that, where there is a controversy,' the wishes of the deceased person, if ascertained, should be given controlling force: 13 Cyc. 271; In re Richardson, 29 Misc. 367, 60 N. Y. Supp. 539; In re Riegle’s Estate, 10 Misc. Rep. 491, 32 N. Y. Supp. 169; In re Donn, 14 N. Y. Supp. 189; Wilson v. Read, 74 N. H. 322, 68 Atl. 37, 124 Am. St. 973, 16 L. R. A. (N. S.) 332; Pierce v. Proprietors of Swan Point Cemetery, 10 R. I. 227, 14 Am. Rep. 667.
The trial judge found, and we think he is sustained by a clear preponderance of the evidence, that the hope of the deceased so often expressed was sincere, although he had cherished the thought of coming to Seattle a year before; that
The fact appearing that the deceased did not own either the lot in which his former wife or the one in which his two children by his second wife are buried, we trust that the spirit of equity which impels this decision will move respondents to purchase a lot apart from either, where the grave of the deceased may be marked and his memory recalled, unburdened with the thought of family differences. To do otherwise would work injustice to two women, one living and the other dead, whose devotion to the deceased was and is unquestioned.
Affirmed.
Dunbar, C. J., Ellis, Crow, and Morris, JJ., concur.