tion, whether set forth in the will of the decedent, in a private letter written by him, or by oral instructions during his lifetime, can not be enforced and is therefore void.13 But the idea of property rights is not the determining factor as to the interment of a decedent. The mode and manner of burial rest upon considerations of public health and decency, and also upon considerations arising out of domestic relations and of sentiment. 14 A will is but the expression of a testator's intention of what he desires after his death, and although a disposition of his remains by the testator appears not to be sanctioned as a matter of absolute legal right, yet there should be a proper respect for and observance of the wishes of the departed.15

The question is not one of property value, but more of a sacred right and duty which rest upon the surviving spouse or next of kin;16 and in some decisions the right of a person to provide by will for the disposition of his body is recognized as a qualified right which should be protected. It is a practice among civilized people to

13 Williams v. Williams, L. R. 20 Ch. Div. 659; Enos v. Snyder, 131 Cal. 68, 82 Am. St. Rep. 330, 53 L. R. A. 221, 63 Pac. 170.

14 Fox v. Gordon, 16 Phila. (Pa.) 185, approved in McGann v. McGann, 28 R. I. 130, 66 Atl. 52.

15 Fox v. Gordon, 16 Phila. (Pa.) 185.

In Pettigrew v. Pettigrew, 207 Pa. St. 313, 99 Am. St. Rep. 795, 64 L. R. A. 179, 56 Atl. 878, the court says: "How far the desires of the decedent should prevail against those of a surviving hus

band or wife is an open question, but as against remoter connec tions, such wishes, especially if strongly and recently expressed, should usually prevail."

16 Renihan v. Wright, 125 Ind. 536, 543, 21 Am. St. Rep. 249, 9 L. R. A. 514, 25 N. E. 822; Larson v. Chase, 47 Minn. 309, 28 Am. St. Rep. 370, 14 L. R. A. 85, 50 N. W. 238.

(In the two cases just cited such right was so stated to be the rule "in the absence of any testamentary disposition.")

17 Pierce v. Proprietors of Swan

observe the wishes of friends and relatives as to the disposition of their remains,18 and where the decedent has expressed a desire to be buried in a particular place, effect should be given to such wish.19 When the remains of a decedent have been disposed of according to his wishes, a court of equity will prevent them from being disturbed.20

§1451. The Same Subject: Cremation.

It has been said in an English case that by common law as well as by ecclesiastical law, any person dying in England is entitled to a Christian burial in the accustomed form in a consecrated burial ground belonging to his own parish or to the parish in which he may have died; and therefore neither the executor, administrator, nor any other person upon whom the law imposes the duty of burying the deceased, can deprive the decedent of such right and direct that the remains be cremated unless the decedent has left written directions or expressed in his lifetime a desire to be cremated.21

§1452. Personal Representative Has No Interest Regarding Reinterment of Remains.

Irrespective of any conflict of authority as to whether or not there is a duty imposed upon an executor or administrator regarding the burial of a decedent, any such duty

Point Cemetery, 10 R. I. 227, 238, 14 Am. Rep. 667.

See, also, Patterson v. Patterson, 59 N. Y. 574, 583, 17 Am. Rep. 384, opinion by Folger, J.; Wood V. E. R. Butterworth & Sons, 65 Wash, 344, 118 Pac. 212.

18 In re Donn, 14 N. Y. Supp. 189, 191.

19 In re Dixon, (1892) P. 391;

Thompson v. Deeds, 93 Iowa 228, 35 L. R. A. 56, 61 N. W. 842; Scott v. Riley, 16 Phila. (Pa.) 108.

20 Thompson v. Deeds, 93 Iowa 228, 35 L. R. A. 56, 61 N. W. 842; Nelson v. Schoonover, 89 Kan. 779, Ann. Cas. 1915A, 147, 132 Pac. 1185, 1185; Lourie v. Plitt, 11 Phila. (Pa.) 303.

21 In re Kerr, (1894) P. 284, 293.

terminates with the first interment. With regard to the question of the removal of the remains or the reinterment thereof, he is not a party in interest. This is a matter which must be settled by the surviving spouse or next of kin.22 And irrespective of whether or not the wishes of the decedent should be followed in the manner of burial, after the interment is once had, the executor is relieved from further responsibility in the matter. The statement in the will of a testatrix may be conclusive evidence of her wish in regard to her burial at the time of its execution, but should not control over a different desire, subsequently expressed, although shown only by oral evidence. Where the interment has been made by the husband in accordance with what he states to have been the desires of his wife made known to him and others in her last illness, the executor then ceases to be interested in the matter; it is neither his duty to challenge the accuracy of the husband's statement nor to make an issue on the subject for the determination of the court.2 23

§ 1453. As to Right of Removal of Remains Once Properly Interred.

Regarding the question of the removal of the remains of a decedent after they have once been properly interred, the right to control such removal is vested first in the surviving husband or wife, but if there be none, then in the next of kin. The presumption is against the removal of the remains and this presumption is stronger as the remoteness of the relationship with the decedent

22 In - re

Widening Beekman

Street, 4 Bradf. (N. Y.) 503; Pettigrew v. Pettigrew, 207 Pa. St. 313, 99 Am. St. Rep. 795, 56 Atl. 878.

See, also, Wynkoop v. Wynkoop, 42 Pa. St. 293, 82 Am. Dec. 506.

23 Nelson v. Schoonover, 89 Kan. 779, Ann. Cas. 1915A, 147, 132 Pac. 1183, 1185.

increases. When such a case comes into court, the chancellor will regard the sentiment against removal, consider all the circumstances in that connection, and require a reasonable cause for removal to be shown.24

After the duty of providing for a suitable interment of the remains has been discharged, the remains thereafter are in effect in the custody of the law, and a court of equity has jurisdiction and control in matters of removal.25 If the surviving spouse has consented to the burial of the decedent in a suitable place, he or she is in effect estopped from thereafter causing the remains to be disturbed or reinterred in another place.26 Where the burial has been effected with the consent of those who in law have an interest therein, the burial place is regarded as the final sepulchre of the deceased and can not be changed against the desires of interested parties.27 If, however, the interment was but temporary, as where the husband placed the remains of his wife in the plat of another with the understanding that the same was not to be her final resting place, a court of equity will allow him to remove them.28

24 Pettigrew v. Pettigrew, 207 Pa. St. 313, 99 Am. St. Rep. 795, 56 Atl. 878.

As to the right of removal under the New York statute, see Matter of Bauer, 68 App. Div. (N. Y.) 212, 72 N. Y. Supp. 439, 74 N. Y. Supp. 155.

"The imprecation on the tomb at Stratford, 'Curst be he that moves my bones,' whether it be Shakespeare's own or some reverent friend's, expresses the universal sentiment of humanity, not

only against profanation, but even disturbance."-Pettigrew v. Pettigrew, 207 Pa. St. 313, 99 Am. St. Rep. 795, 56 Atl. 878.

25 Smith v. Shepherd, 64 N. J. Eq. 401, 54 Atl. 806.

26 Matter of Richardson, 29 Misc. Rep. (N. Y.) 367, 60 N. Y. Supp. 539.

27 Gardner v. Swan Point Cemetery, 20 R. I. 646, 78 Am. St. Rep. 897, 40 Atl. 871.

28 Pulsifer v. Douglas, 94 Me. 556, 53 L. R. A. 238, 48 Atl. 118.

To the same effect, see Weld v.

§ 1454. Burial Plats and Interests Therein.

The purchase of a burial plat for the interment of the decedent is a proper funeral charge." It may happen that the decedent is possessed of such a plat at the time of his death, or it may be paid for out of the funds of the estate. The property right in a cemetery lot is peculiar in character. A residuary devise in general terms by a testator to his widow will not, as against his children, pass title to a burial plat in which members of the testator's family have been buried.30 A person who purchases a cemetery lot does not usually acquire an absolute interest in or dominion over the actual property, but merely a qualified right for the purposes to which the plat is devoted, it being in the nature of an easement with the exclusive right of burial, subject usually to the general proprietorship of the association controlling the cemetery.31 Other cases hold that an interest in a burial lot does not rise to the dignity of an easement, but is merely a license or right of burial.32 Where an executor purchases a burial lot from a cemetery association, using

Walker, 130 Mass. 422, 432, 39 Am.
Rep. 465.

Where a cemetery and church are in a business district, the cemetery being neglected and the removal of the church contemplated, an injunction to prevent the sale of the cemetery property and the removal of the bodies therefrom and their reinterment in another place was denied.-Ex parte McCall (Little v. Presbyterian Church of Florence), 68 S. C. 489, 47 S. E. 974.

29 Chalker v. Chalker, 5 Redf. (N. Y.) 480.

80 In re Waldron, 26 R. I. 84, 106 Am. St. Rep. 688, 67 L. R. A. 118, 58 Atl. 453.

81 McWhirter v. Newell, 200 Ill. 583, 66 N. E. 345; Hook v. Joyce, 94 Ky. 450, 21 L. R. A. 96, 22 S. W. 651; Roanoke Cemetery Co. v. Goodwin, 101 Va. 605, 44 S. E. 769.

32 Dwenger v. Geary, 113 Ind. 106, 14 N. E. 903; Partridge v. First Independent Church, 39 Md. 631; Page v. Symonds, 63 N. H. 17, 56 Am. Rep. 481; Kincaid's Appeal, 66 Pa. 411, 5 Am. Rep. 377.