out, however, of the fact that to a large extent each decision has been governed principally by the circumstances of the case. For this reason an expression in a decision has been taken as the promulgation of a general rule, whereas the point decided in effect dealt merely with the conditions involved. Upon the death of a decedent the dictates of sentiment and humanity and the regulations of public health and decency require that the remains be properly interred. Funeral arrangements are matters which can not be delayed. Interment or cremation is a matter of public necessity, applicable to all cases except burial at sea, where the same result is attained. The point which first arises is upon whom is imposed the duty of attending to the funeral arrangements. This naturally varies according to the circumstances since the decedent may leave a surviving spouse, children or near relatives at the place of his death; he may have such family connections but die abroad and apart from them; or he may leave only relatives who are very distant or perhaps forgotten. Certain rights and duties are imposed upon an executor or administrator, but which arise more in connection with the defraying of expenses than with regard to the right of burial which is vested in the surviving spouse or next of kin. And the one attending to the funeral arrangements must do so with regard to the circumstances and condition of the estate of the decedent, and with proper observance as to any wishes which the decedent may have expressed with regard to the place and manner of his burial. The question of reinterment or removal of the remains which may subsequently arise must not be confused with that of the original burial. The matter of a burial plat and that of the erection of a tombstone or monument over the grave of the decedent must be considered, being in themselves in the nature of funeral charges. And then comes the question as to where the burden shall rest for the expenses of the funeral, a matter somewhat dependent upon circumstances and likewise upon statute. The points mentioned will be considered in the following sections, and it is only by considering each case in itself that the apparent conflict of authority may be reconciled. § 1447. Power of Personal Representative as to Burial of Decedent Subordinate to That of Surviving Spouse and Next of Kin. Confusion has arisen in many cases because of the fact that there is no property right in a corpse. This statement of law has been enunciated in cases involving the power of directing the manner of the disposition of the remains by will. But the rights, duties and obligations as to burial are not considered in the nature of property rights, being governed rather by the demands of domestic relations, sentiment and necessity.2 It is often said in the decisions that the duty is imposed upon the executor or administrator to see that the decedent is decently buried. Such statements, however, are generally found in cases involving the duty of the personal representative to defray the funeral charges out of the assets of the estate. It is a well known fact that under the rules governing probate and administration no executor or administrator can be appointed to permanently fill the office until after the appropriate time for 1 Williams v. Williams, L. R. 20 2 See § 264; Fox v. Gordon, 16 Phila. (Pa.) 185; Pettigrew v. Pettigrew, 207 Pa. St. 313, 99 Am. St. Rep. 795, 56 Atl. 878; McGann v. McGann, 28 R. I. 130, 66 Atl. 52. the funeral has passed; and the burial of the dead body, as distinguished from the expenses of burial, is not to be found in the statutory enumeration of the rights and duties of executors and administrators.* Where the statute requires the executor or administrator to pay the funeral charges of the decedent out of the assets of the estate, giving such claims priority over other debts, this would prima facie impose upon the executor or administrator the duty to determine when, where and in what manner the body should be buried. But this duty is not absolute, for the determination of such matters rests upon considerations of sentiment and family relations, and is vested in the surviving spouse or next of kin of the decedent." 81448. The Same Subject. As between the executor or administrator and the next of kin, the custody of the corpse of the decedent and the right of burial belong to the latter, and the courts will protect the next of kin in the exercise of such right. However, in a leading English case it is said that the right of custody, being incident to the duty of burial, is in the personal representative of the decedent; but this case, which is often cited on this point, deals with the right of a friend who disinterred and removed the remains from the cemetery where they had been placed by the executor, * Enos v. Snyder, 131 Cal. 68, 82 Am. St. Rep. 330, 53 L. R. A. 221, 63 Pac. 170; O'Reilly v. Kelly, 22 R. I. 151, 84 Am. St. Rep. 833, 50 L. R. A. 483, 46 Atl. 681. 4 Enos v. Snyder, 131 Cal. 68, 82 Am. St. Rep. 330, 53 L. R. A. 221, 63 Pac. 170. Fox v. Gordon, 16 Phila. (Pa.) 185; Pettigrew v. Pettigrew, 207 Pa. St. 313, 99 Am. St. Rep. 795, 56 Atl. 878. 6 Renihan v. Wright, 125 Ind. 536, 21 Am. St. Rep. 249, 9 L. R. A. 514, 25 N. E. 822. 7 Williams v. Williams, L. R. 20 Ch. Div. 659. to collect from the executor the expenses incurred in so doing. Recovery was denied on the ground that the directions given by the decedent in a private letter to the friend did not give him a property right in the remains. Some decisions, in generalizing on the subject, have said that the right of burial belongs to the next of kin. This expression was used in a leading case and has been frequently quoted as laying down such as the absolute rule. But the point involved in the case was the removal of remains from a churchyard wherein they had rested for more than fifty years, the removal being made necessary by the widening of a street. The contest was between the church and the next of kin and the decision favored the latter, but the rights of the next of kin are not paramount when the contest lies between them and the surviving husband or wife. 8 § 1449. Surviving Spouse of Decedent Has Primary Right to Designate Place and Manner of Burial. At common law it was the duty of a husband to bury his deceased wife, a principle arising out of his obligation to pay her funeral expenses. A summary of the various decisions will show that the right or duty of burial varies according to circumstances. If a husband and wife have been living together under normal marriage conditions, upon the death of one it is the right and duty of the survivor to direct the place and manner of burial. If there be no surviving husband or wife, the right and duty vest in the next of kin in the order of their relationship to the 8 In re Widening Beekman Street, 4 Bradf. (N. Y.) 503, followed in Wynkoop v. Wynkoop, 42 Pa. St. 293, 82 Am. Dec. 506. 9 Hackett v. Hackett, 18 R. I. 155, 49 Am. St. Rep. 762, 19 L. R. A. 558, 26 Atl. 42. decedent, such as children of proper age, parents, brothers, sisters, and other relatives.10 But a decedent may have no near relatives or may die or meet with a fatal accident at a distance from his home. Preparation for the funeral of a decedent is a matter which can not be delayed. The decedent's family should be communicated with, if they can be reached, and their wishes ascertained; if they can not be reached or if the decedent has no known relatives, his burial can not be delayed until an executor or administrator has been appointed. Under such circumstances a friend or other person is justified in taking charge.11 §1450. Effect of Directions of Decedent as to Place and Man. ner of Burial. It is not a settled question how far the wishes of a decedent should prevail as to the place and manner of burial. Decisions dealing with this subject have been guided largely by the principle that there is no property right in a corpse and that therefore a testator can not by his will or otherwise direct the disposition of his remains.12 It has therefore been said that any such direc statutory form, Penal Code, § 292, and by § 293, Penal Code, a neglect of such duty is made a misdemeanor and further punishable by a liability to pay treble the expenses incurred by another in making the burial, to be recovered in a civil action. 10 O'Donnell v. Slack, 123 Cal. been substantially enacted in 285, 43 L. R. A. 388, 55 Pac. 906; Durell v. Hayward, 9 Gray (75 Mass.) 248, 69 Am. Dec. 284; Hadsell v. Hadsell, 3 Ohio C. D. 725, 7 Ohio Cir. Ct. Rep. 196; Pettigrew v. Pettigrew, 207 Pa. St. 313, 99 Am. St. Rep. 795, 56 Atl. 878; Hackett v. Hackett, 18 R. I. 155, 49 Am. St. Rep. 762, 19 L. R. A. 558, 26 Atl. 42; McGann v. McGann, 28 R. I. 130, 66 Atl. 52. The rule stated in the text has 11 O'Reilly v. Kelly, 22 R. I. 151, 84 Am. St. Rep. 833, 50 L. R. A. 483, 46 Atl. 681. 12 See § 264. |