Dougherty v. Mercantile-Safe Deposit & Trust Co., MERCANTILE-SAFE

• Decision Date: 24 May 1978
• Docket Number: No. 126,MERCANTILE-SAFE,126
• Parties: Elizabeth L. DOUGHERTY v.DEPOSIT AND TRUST COMPANY and Allan H. Fisher, Jr., Personal Representatives of the Estate of Patrick Francis Dougherty, Sr.
• Court: Maryland Court of Appeals

Page 617

282 Md. 617

387 A.2d 244

Elizabeth L. DOUGHERTY v. MERCANTILE-SAFE DEPOSIT AND TRUST COMPANY and Allan H.

Fisher, Jr., Personal Representatives of the

Estate of Patrick Francis Dougherty, Sr.

No. 126.

Court of Appeals of Maryland.

May 24, 1978.

Frank Cannizzaro, Baltimore, for appellant.

David M. Tralins, Baltimore, for appellees.

Argued before SMITH, DIGGES, LEVINE, ELDRIDGE, ORTH and COLE, JJ.

COLE, Judge.

This case is an appeal from a decree denying a widow the right to disinter her husband.

Elizabeth L. Dougherty (Elizabeth) and Patrick F. Dougherty, Jr. (Junior) were married in Baltimore City on December 31, 1971 after a long acquaintance. Suddenly on June 20, 1972, Junior died intestate and without having made any plans in case of his death. Elizabeth notified her father-in-law, Patrick F. Dougherty, Sr. (Senior) of her husband's death, which was also the first knowledge that Senior had that Junior and Elizabeth were married, though Elizabeth was known by the Dougherty family. Senior expressed concern that he would have to bear the expense of the funeral; however, Elizabeth assured him that she would assume all funeral costs. The next day, following Junior's death, Senior called Elizabeth and told her he had seven lots at Dulaney Valley Memorial Gardens and wanted Junior buried there. He said that she could be buried next to Junior, if she desired, provided she did not remarry and provided that Senior could approve the design of any grave marker. Elizabeth testified that she agreed to Senior's proposition because of the difficulty in selecting a lot at that time ¹ and the pressure stemming from her husband's sudden death.

On June 23, 1972, Junior's body was interred in Lot B-4 of the Dougherty family plot and Lot B-3 was designated as the lot reserved for Elizabeth.

Elizabeth paid for the funeral and for a period thereafter attempted to have Senior reduce to writing his promise to allow her to put a proper marker on Junior's grave. Senior refused to put anything in writing but insisted that any marker must meet his approval. Elizabeth offered to buy the lots, but Senior refused to sell. Elizabeth then threatened to remove Junior's remains if she could not be buried there. The parties referred the matter to their respective lawyers but the answer from Senior remained the same.

On October 18, 1974, Geraldine M. Dougherty, Junior's sister, died and was buried in B-3, the lot reserved for Elizabeth. Elizabeth instituted these proceedings against Senior to disinter her husband with the intention of moving his body to one of two adjoining sites she had purchased in the same cemetery. Senior died on January 7, 1975 and his personal representatives, substituted as respondents, along with Carol, the sole Dougherty survivor, agreed to give effect to the agreement between Elizabeth and Senior by removing the remains of Geraldine from B-3 to another space in the family plot and thereby reserving B-3 for Elizabeth. Elizabeth refused to accept this compromise.

The matter was tried before the Circuit Court of Baltimore City (Sullivan, J.) which decided that Senior had been distressed over the death of four members of his family in four years (which included two of his children) and had made a mistake in burying Geraldine in B-3. The court ordered the personal representative to remove Geraldine's remains from B-3 and to reserve that lot so that Elizabeth could be buried beside her husband. Elizabeth appealed to the Court of Special Appeals and we granted certiorari prior to consideration by that court.

Our predecessors decided in Unterstitzung Verein v. Posner,176 Md. 332, 4 A.2d 743 (1939), that the wife, upon the death of her husband, has the paramount right to possession of his body ² and to decide the place of sepulture. However, when the duty to furnish proper burial has been discharged, the right of custody ceases and the body is thereafter in the custody of the law and disinterment or disturbance of the body is subject to the control of a court of equity. Pettigrew v. Pettigrew, 207 Pa. 313, 56 A. 878 (1904). Justice Cardozo stated the proposition rather succinctly in Yome v. Gorman, 242 N.Y. 395, 403, 152 N.E. 126, 129 (1926): "The dead are to rest where they have been laid unless reason of substance is brought forward for disturbing their repose."

Thus, any right of the wife to remove the body after it is interred is conditioned upon her having a sound reason. There have been instances when the courts have been granted permission, e. g., when the initial interment was understood to be temporary, Sacred Heart of Jesus Polish Nat'l Catholic Church v. Soklowski, 159 Minn. 331, 199 N.W. 81 (1924); McMillam v. Gentry, 96 Okl. 235, 221 P. 717 (1923); Pulsifer v. Douglass, 94 Me. 556, 48 A. 118 (1901), or where there is a lack of room for the spouse to be buried beside the deceased, Leschey v. Leschey, 374 Pa. 350, 97 A.2d 784 (1953), or the body is wrongfully interred in the lot of a plot owner, Hughes v. Harden, 194 Okl. 307, 151 P.2d 425 (1944).

However, where an interment takes place with the consent, express or implied, of those most interested, the interment is regarded in law as a final sepulture. Fowlkes v. Fowlkes, 133 S.W.2d 241 (Tex.Civ.App.1939); Bunol v. Bunol, 12 La.App. 675, 127 So. 70 (1930); Stiles v. Stiles, 113 Misc. 576, 185 N.Y.S. 53 (1920). This is particularly of great weight where the surviving spouse consents to the initial place of burial, Peters v. Peters, 43 N.J.Eq. 140, 10 A. 742 (1887), unless the spouse can show that the consent was obtained through coercion or was otherwise involuntary. McEntee v. Bonacum, 66 Neb. 651, 92 N.W. 633 (1902).

Elizabeth contends that she has a substantial reason to justify disinterment. She asserts first, that the consent she gave to Junior's burial in the Dougherty plot stemmed from her grief and the pressure due to the weather and the investigation by the police; second, that the burial site was only temporary; and that Junior's sepulture was conditioned upon her being able to be buried next to him and her being able to select a proper grave marker. She claims that Senior thwarted her efforts to select a proper grave marker and violated the terms under which Junior was interred by refusing to state in writing his promise that she could be buried in B-3 and finally by burying his daughter, Geraldine, in that very same lot. She contends that under these facts the chancellor was clearly in error when he ordered the body of Geraldine to be removed so that B-3 would be available for her burial beside Junior and thus consummate the original agreement.

The scope of appellate review in a non-jury case is set forth in Maryland Rule 886:

When an action has been tried by the lower court without a jury, this Court will review the case upon both the law and the evidence, but the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.

If there is substantial evidence to support the trial court's factual conclusion, that finding must be reviewed in the light most favorable to the prevailing party below and the appellate court should accept that conclusion. Clemson v. Butler Aviation, 266 Md. 666, 296 A.2d 419 (1972); Crosse v. Callis, 263 Md. 65, 282 A.2d 86 (1971); Burroughs Int'l Co. v. Datronics, 254 Md. 327, 255 A.2d 341 (1969); Hamilton v. Smith, 242 Md. 599, 219 A.2d 783 (1966).

In the case sub judice, the chancellor heard all of the witnesses and concluded from the evidence, as a matter of fact, that Geraldine's burial in B-3 was a mistake and that since Carol agreed that B-3 would be available upon Geraldine's removal, Elizabeth had no valid reason for Junior's disinterment.

Elizabeth contends that the chancellor erred when he...