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334 PARK AND CEMETERY. 
Problems of Park and Cemetery Law 
• 4 r! rhnrtmcnt of Legal Advice and Discussion on problems that confront 
parks and cemeteries. You are invited to ask questions which will be answered 
by an attorney ivithout charge. .1. L. H. Street, Consulting Attorney. 
Right to Remove ]^dy 
Legal Editor, Park and Cemetery : I 
need some information. Can you help me? 
A married son, dying, was buried (with the 
widow’s consent) in his father's lot. A 
few weeks later the widow ascertained that 
she could not be buried in the same lot. 
She wanted to buy a lot and have her hus- 
band’s body removed, so she could be 
buried alongside of her husband. The 
parents objected to the removal of the 
son’s remains and threatened to get an in- 
junction if an attempt was made to remove 
the body. So you see what I am up 
against.— M. IT. J., O. 
The widow’s right to remove the body is 
so doubtful that I advise you to have noth- 
ing to do with a removal unless a court 
order is obtained by the widow permitting 
a removal. You seem to be “between two 
fires” and threatened with suit whether you 
participate in the removal or refuse to per- 
mit it. I am of the opinion that in such a 
case the wishes of the owner of the lot in 
which a body has been lawfully interred 
with the consent of all parties concerned 
should not be disregarded. 
If the widow desired to make permission 
for burial of her own body in the lot a 
condition to her consenting to burial of her 
husband’s remains there, she should have 
exacted the condition before the interment 
was made. 
The facts of this case are very much like 
those of the case of Fox vs. Gordon. 16 
Philadelphia Reports, 185, and the extract 
which we make from that case below 
shows the law of such cases. The daughter 
and wife of plaintiff died, and their bodies 
were buried in the wife’s father’s burial 
lot, with the husband’s consent. The 
father-in-law paid the funeral expenses. 
Three years later the husband brought suit 
for permission to remove the bodies, but 
the court refused to permit him to do so, 
saying : 
“His right to fix the spot where the re- 
mains of his wife and child should rest has 
been once exercised, and cannot, after the 
lapse of three years, be recalled or altered, 
when its effect would be to harrow up the 
feelings of others and to disturb unneces- 
sarily the bodies which should be left to 
repose in the graves to which they were 
consigned with the solemnities and re- 
ligious rites which attend the burial of the 
dead.” 
Similar decisions to this have been an- 
nounced in Iowa, New Jersey and Rhode 
Island. 
In the case of Thompson vs. Deeds, 61 
Northwestern Reporter. 842, the Iowa Su- 
preme Court denied the right of a widow 
to remove the remains of her husband from 
a lot owned by his daughter by a former 
wife. The court said : 
“The fact that the plaintiff holds the legal 
title to the lot wherein rest the remains of 
her dead father is not, to our minds, of 
controlling importance in determining as 
to the right of the defendant to remove his 
remains. If the title was held by a stranger, 
there might be reason for removing the re- 
mains of the deceased to a lot, the title 
to which was in some member of his fam- 
ily. Especially so if he was buried in a lot 
under the mistaken belief that he or some 
member of his family owned it, when, in 
fact, it belonged to someone else. As it is, 
the owner of the lot being his daughter, 
we do not see that there is any reason for 
disturbing his remains. He knew who held 
the title of this lot, and more than once, 
during his lifetime, expressed a wish that 
when he died he might be interred therein, 
beside the remains of his first wife. This 
wish was properly carried out by his last 
wife, and that ought to end the matter. A 
proper appreciation of the duty we owe to 
the dead, and a due regard for the feel- 
ings of their friends who survive, and the 
promotion of the public health and welfare, 
all require that the bodies of the dead 
should not be exhumed, except under cir- 
cumstances of extreme exigency. No emer- 
gency exists in this case.” 
In passing, it is interesting to note that 
the Iowa court recognized the right of the 
widow to erect a suitable monument over 
her husband’s grave, even if it was in the 
lot of another. The court said on this 
point : 
“It would be a doctrine abhorrent to our 
sense of what is right and just to say that, 
after deceased had been buried in plain- 
tiff’s lot, she alone should be permitted to 
testify to her affection for him by the 
erection of a monument to his memory, 
and by otherwise adorning and embellish- 
ing his last resting place. When plaintiff 
consented to the burial of her father in her 
lot, she knew, or ought to have known, 
that that consent involved the right on the 
part of his widow to manifest her apprecia- 
tion of and affection for the deceased in the 
usual way, followed from time immemorial 
by those who respect and revere their 
dead. This daughter and this widow 
should exercise a little Christian charity ; 
should remember that, whatever their dif- 
ferences may be, they should be lost sight 
of in the presence of the dead, and obliter- 
ated in a common desire and effort to suit- 
ably testify to their respect for one who 
was, as to one of them, a father, and, as 
to the other, a hifsband. What matters it 
that the law has said that after burial of a 
husband the wife shall have no control over 
his remains ; that his next of kin have 
the exclusive right of disposition thereof? 
This court has said that for some purpose, 
at least, the widow is to be treated as next 
of kin. (French vs. French, Iowa, 51 N. 
W., 146.) But however that may be, as 
applied to a case like this, it is of no mo- 
ment to determine, as it always has 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 it is possible, be carried out. In 
one view, it is true it may not matter much 
where w'e 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. 
“We think the district court erred. It 
should have entered a decree for plaintiff 
[the daughter], enjoining the removal of 
the body of Philip Deeds, and authorizing 
the defendant [the widow] to erect upon 
the lot in which he remains a monument to 
his memory, with proper inscriptions. Un- 
der the peculiar circumstances of this case, 
defendant’s right in this respect should be 
properly guarded, as to the size and loca- 
tion of the monument, having in mind the 
plaintiff’s right to occupy and use the rest 
of the lot. We think that no inscription 
should be permitted to be placed upon the 
monument, in any way referring to the 
plaintiff or her first husband, whose re- 
mains lie in said lot. 
“Defendant should not be permitted to 
erect a coping around said lot. To do so 
would be a virtual act of appropriation of 
the whole lot, which, under the circum- 
stances, would, we think, be manifestly im- 
proper. The decree should be broad enough 
to permit both parties, as well as any of 
the kin of the deceased, to, at their pleas- 
ure, decorate the grave of the deceased 
with flowers, and, in so doing, not to inter- 
fere with each other.” 
Location of Chapel 
A pessimistic layman might paraphrase 
an old saying by declaring that where there 
is a will there is a lawsuit. One of the 
latest cases in which a person has passed 
away under the serene belief that his will 
was litigation proof, only to leave food for 
a lawsuit, is indicated in Carroll vs. Cave 
Hill Cemetery Co., 189 Southwestern Re- 
porter, 186, decided by the Kentucky Court 
of Appeals. 
Mrs. Eastin died leaving a will in which 
she directed that $25,000 be used in erect- 
ing a mortuary chapel in Cave Hill Ceme- 
tery, Louisville, “just beyond the present 
