42 Pa. 293 | Pa. | 1861
The opinion of the court was delivered, April 21st 1861, by
So universal is the right of sepulture, that the
After hearing counsel upon the report, the court confirmed it
Colonel Francis M. Wynkoop died suddenly, from an accidental gunshot wound, at his residence at Valencia, Schuylkill county, Pennsylvania, on Sunday the 13th day of September 1857, and was buried in the course of the Aveek in the burial lot of his mother, Angelina C. Wynkoop, in the Mount Laurel Cemetery, belonging to the rector, churchwardens, and vestrymen of Trinity Church, Pottsville, in the said borough of Pottsville, with military honours, the deceased having served in Mexico, in command of a volunteer regiment principally raised in Schuylkill county. Some days afterwards his widoAY took out letters of administration in Schuylkill county upon her husband’s estate. On the 10th of November 1858, in pursuance of the orders of his Avidow, the complainant, an undertaker, called on one of the churchwardens for the key of the cemetery, in order to take up and remove the remains of her husband to Laurel Hill Cemetery, near Philadelphia, Avhich was refused, in consequence of a notice from the mother and next of kin of the decedent, and in Avhose lot he was buried.
On the 30th of the same month, the widow, in her own right and as administratrix, filed a bill in equity in the Court of Common Pleas of Schuylkill county, against Angelina C. Wynkoop (the mother), John E. Wynkoop (a brother), Anna M. Wynkoop (a sister), Thomas J. Atwood, and the rector, churchwardens, and vestrymen of Trinity Church, Pottsville, praying an injunction commanding the mother and the said corporation to permit the plaintiff and her agents to remove the body of the deceased. Upon the hearing on bill, answers, and proofs, the court below decreed that an injunction be issued according to the prayer of the plaintiff against the defendants, from which an appeal was taken by the mother, Angelina C. Wynkoop.
The bill asserts a fixed legal right in the plaintiff in two capacities : 1st, as administratrix; 2d, as widow. As to the first, the absolute duty to bury terminated with the burial, and no subsequent expenses would be a legal charge upon the estate of the decedent,, whether solvent or insolvent. 2. As widow, in this case she would appear to have no rights after the interment. Suppose a woman has had three husbands, who have all died leaving her a Avidow (3 Rawle 304), is she to be burdened with the duty and vested with the charge of their three bodies against the expressed Avishes of the blood relations and next of kin of each?
We do not think the present case calls for the interference of a court of equity, and, therefore,
It is ordered, adjudged, and decreed that the decree of the Common Pleas' of Schuylkill county be reversed, and the bill be dismissed.