462 
PARK AND CEMETERY 
titled to give them, the executor or administrator has the 
right and duty of providing decent burial. 
“It has been argued, even by judges whose conclusions 
agree substantially with those herein expressed, that all of 
these rights spring from legal duties; for instance, that a 
husband has the right to his wife’s body because he has a 
right to administer her estate and because the office of ad- 
ministrator carries the duty to bury and, therefore, the right 
to the body. Such reasoning seems fallacious and unneces- 
sarily complex. It overlooks the distinction between the 
various rights. Some are public rights connected with public 
duties, such as the old common law duty of a householder to 
bury a person dying under his roof, if there was no one else 
to do it. The duty and corresponding right of the executor 
or administrator to bury may also fairly be considered to be 
public in their nature, because some one must do it. Other 
rights, however, are not of the same class. Some who have 
rights may under some circumstances have duties in the same^ 
matter, as in the case of the husband or wife or father or 
mother where there is no estate of the deceased. But it 
does not follow and is not the fact that such duties and rights 
are always correlative. There is no public concern in the 
disposal of the body except to see that it is decently done. 
The rights of persons in such matters as are here consid- 
ered are, therefore, essentially private, and rest on the law’s 
respect for private feelings, and the law, so stated, does not 
require technical and misleading analogies to support it. 
“It is suggested in the Rhode Island case of Pierce v. 
Swan Point Cemetery, already referred to, that all the rights 
in a dead body are subject to regulation by a court of equity 
similar to the control which a court exercises as to the 
custody of children, the ground being that the custody of a 
dead body is a ‘trust’ for friends and others feeling a natural 
interest ; and this suggestion was repeated by the court in 
Hackett v. Hackett, with the additional remark, that ‘in no 
case is it’ (the right to control) ‘an absolute right.’ 
“It is to be regretted that the word ‘trust’ has been intro- 
duced into the discussion, for the word has such technical 
significance in the law of property that it is likely to create 
confusion. It is clear that all that is meant by the word 
‘trust,’ as used by the Rhode Island court and other courts 
that have used it, is that after the burial of a body the 
courts will protect the repose of the dead, and will settle 
disputes by some commonsense rule of respect for the feel- 
ings of those interested; and before burial, if disputes arise 
between next of kin of the same degree who have equal rights, 
or even between relatives of different degrees under special 
circumstances, the courts will regulate the matter as well as 
they can on the ground that rights in this class of cases are 
not absolute, like property rights, but are subject, not only 
to the rules of public health and decency, but also, to some 
extent, to considerations of fitness and respect. For in- 
stance, it is not uncommon for persons desiring cremation 
to direct that their ashes be given to the winds. The juris- 
diction over such a case does not rest on any theory of a 
’trust,’ as the word is used in the law of property. It exists, 
and has always existed in this country, because common sense 
and decency demand it and it is limited by the ordinary limi- 
tations of common sense and decency. There is no reason 
why a court should thwart such wishes. 
“To sum up this branch of the subject, in spite of such 
differences as have been pointed out, of reasoning and phrase- 
ology in different cases, the rules of precedence and of rights 
of relatives throughout this country are, in the absence of 
statute, substantially those herein stated ; and in England, 
although at present the doctrine of ‘Christian burial’ and the 
rights of relatives are limited, as above stated, it seems prob- 
able that in the near future, when the public becomes more 
accustomed to the idea of cremation and its advantages and 
the courts have more thoroughly digested the opinion of Sir 
James Stephen in Queen v. Price, the law will gradually 
develop along the lines of the American cases. That this 
is the natural development demanded by modern conditions 
and its accomplishment seems to be merely a question of time 
and of overcoming conservative ideas. The gradual prog- 
ress in this direction is reflected in the English ‘Cremation 
Act, 1902,’ a legislative recognition of the practice of cre- 
mation, which provides that burial authorities may construct 
crematories, and the Secretary of .State may regulate the 
cases and conditions under which cremation may take place. 
Conclusion. 
“To sum up, then, the authorities generall}^ in this coun- 
try, except where the law has been changed by statute, show 
ordinarily that : 
“First, a person may control the disposition of his or her 
body, and direct it to be cremated. 
“Second, if no such directions are left, the matter is in 
the control of the survivors in the order above stated ; but, 
where disputes arise between persons of the same degree of 
kinship or in any unusual circumstances, the court will take 
control, and exercise a wise discretion in the matter. 
“Third, the mode of control by the decedent is that which 
has just been indicated.” 
Perpettial Care in American Cemeteries. 
(Contintied.) 
Beg-un in tbe May Issue. 
CroHvn Hill Cemetery, Indianapolis. 
All cemetery net receipts should be invested in a fund for 
the perpetual maintenance of the entire grounds, and all lots 
receive the same attention and care. This insures a unity of 
result. I do not believe in special care of special lots. 
As to organization of trustees, I believe in a large, self- 
perpetuating board chosen from lot owners, this board meet- 
ing annually and electing from their number a small gov- 
erning board, which shall have entire charge of the cemetery. 
For the care of mausoleums, monuments, etc., we do 
sometimes accept a fund, making an estimate of what might 
be required, and requiring a fund that at 3 per cent will 
produce the cost. 
Three per cent interest can be allowed on perpetual care 
funds. 
The perpetual care of the lot should be guaranteed and the 
lot sold at a figure that will enable the cemetery to safely 
do it. John Chislett, Supt. 
^ine Groove Cemetery, Lynn, Mass. 
We set aside one-third of cost for perpetual care. 
Lots that were purchased before we established the per- 
petual care system, we charge i cent per sq. foot per year for 
care. We require the owner to put the lot in good condition 
at his expense, and then to deposit the same amount that 
others would deposit for a lot the same size. 
As this is a cemetery owned and controlled by the city. 
