Hackett v. Hackett

• Decision Date: 21 January 1893
• Citation: 18 R.I. 155,26 A. 42
• Parties: HACKETT v. HACKETT.
• Court: Rhode Island Supreme Court

26 A. 42

18 R.I. 155

HACKETT

v. HACKETT.

Supreme Court of Rhode Island.

Jan. 21, 1893.

Bill in equity by Thomas Hackett to compel Arreletta Hackett to return the body of her late husband, Thomas F. Hackett, to its place of original sepulture, from which defendant had removed it without the consent of plaintiff, the father and next of kin of said Thomas A. Hackett. Further hearing ordered.

George J. West, for complainant.

Daniel R. Ballou and Frank H. Jackson, for respondent.

STINESS, J. This is a bill in equity to compel the respondent to return the body of her late husband, Thomas F. Hackett, to the grave where it was buried, and from which she has removed it without consent of the complainant, the father and next of kin of said Thomas F. Hackett. The deceased was the owner of a burial lot, one of a family group, in St. Mary's Roman Catholic Cemetery in the village of Crompton, where he was buried, with the acquiescence of the respondent, his widow. About six months afterwards she caused the body to be exhumed, and buried in the Riverside Cemetery in the city of Pawtucket. The respondent claims that she was justified in doing this—First, because her husband had requested her not to permit his body to be buried in a Roman Catholic cemetery, but in a Protestant cemetery; second, that she did not consent to his burial in St. Mary's Cemetery, but, being overcome with grief, and with physical prostration, from nursing her husband in his last sickness, she yielded, under protest, to the demand of his relatives, for the burial aforesaid, so far as to offer no resistance thereto, on account of their threats to take forcible possession of the body, and of her aversion to the disgrace of any strife over his remains; third, that, as the widow of said Thomas F. Hackett, she has the right to control the place of burial, and that she has not surrendered this right.

Upon the first and second grounds set up in the answer we did not hear testimony, preferring first to consider the third ground, in which the widow claimed the right to control the place of burial, as against the next of kin, which might be decisive of the case. We come, then, to the question whether the right to control the burial of a deceased husband is in the widow or in the next of kin. In Pierce v. Proprietors, 10 R. I. 227, it was held that, while no one can be considered as the owner of a dead body, in any sense whatever, yet there is a quasi property in the custodian, in the nature of a trust for the benefit of all who have an interest in it, which the court will regulate. In that case a widow removed the remains of her husband, which, with her consent, had been buried in his own lot, and there had rested about 13 years. The court held that, as the complainant, a daughter, was then the owner of the burial lot which had been invaded, and so was the custodian of the remains, they should be restored to the place from which they were taken. There are other cases of this sort, where the question has arisen as to the right of the next of kin, after burial; notably the cases of Wynkoop v. Wynkoop, 42 Pa. St. 293, 82 Amer. Dec. 506, with notes; Report of Hon. S. B. Ruggles, (The Law of Burial,) 4 Bradf. Sur. 503; Renihan v. Wright, (Ind. Sup.) 25 N. E. Rep. 822. In Bogert v. City of Indianapolis, 13 Ind. 134, where the question was whether the city or the next of kin should have control of an interment, the court decided in favor of the next of kin. In all these cases general expressions were used by the courts to the effect that the next of kin had rights exclusive of all others. Such expressions were appropriate to the case under consideration, but are not to be taken as authority upon the question which is now before us. In Pierce v. Proprietors, and Wynkoop v. Wynkoop, supra, the right of a widow to remove the remains of her husband, against the will of the next of kin, was denied upon the ground of her consent and long acquiescence in the burial; but those cases do not decide that the next of kin had a superior right to that of the widow at the time of the burial. The third conclusion of Mr. Ruggles, in his report, cited above, is "that such right, in the absence of any testamentary disposition, belongs exclusively to the next of kin." But in a note to Weld v. Walker, In 14 Amer. Law Review, (volume 1, N.S.,) 62, it is said that Mr. Ruggles added a note to the original report, in explanation of the term "next of kin," stating that it was not...