Litteral v. Litteral

• Citation: 111 S.W. 872,131 Mo.App. 306
• Parties: JACOB LITTERAL, Respondent, v. PAULINE LITTERAL et al., Appellants
• Decision Date: 08 June 1908
• Court: Court of Appeals of Kansas

111 S.W. 872

131 Mo.App. 306

JACOB LITTERAL, Respondent, v. PAULINE LITTERAL et al., Appellants

Court of Appeals of Missouri, Kansas City

June 8, 1908

Appeal from Jasper Circuit Court.--Hon. Hugh Dabbs, Judge.

AFFIRMED.

Judgment affirmed.

R. A Mooneyham for appellant.

McReynolds & Hallibuton for respondent.

(1) A bill in equity to enjoin the interfering with a lot in a cemetery ground may be brought in the name of the party owning the lot or relatives of deceased buried thereon. Boyce v. Kalbaugh, 47 Md. 334, 28 Am. Rep. 464; Davidson v. Reed, 111 Ill. 167, 53 Am. Rep. 613; 6 Cyc. 72, sec. 8, par. 182, note 70; Pierce v Cemetery, 10 R. I. 227, 14 Am. Rep. 667; Keys v Koupel, 75 Am. St. 427; Church v. Church, 2 Brewst. 372; Price v. Church, 4 Ohio 515; Mitchell v. Thorn, 134 N.Y. 536, 30 Am. St. 699, 32 N.E. 10. (2) Charles Litteral having died in his father's home, it was the duty of Jacob Litteral to give the body a decent burial, especially the wife being absent. Pierce v. Cemetery, 10 R. I. 227, 14 Am. Rep. 667; Wynkoop v. Wynkoop, 42 Penn. St. 293, 82 Am. Dec. 506, and note 4, p. 511, note 6, p. 513. (3) The body of Charles Litteral having been interred by his father, Jacob Litteral, on a lot purchased by him in Mount Hope Cemetery; the body encased in a fine casket and properly and decently dressed, and the cemetery and lot of the best; all done in the absence of the widow Pauline Litteral, she is not entitled to enter on the lot and attempt to remove, or remove the body and casket or either, and the court will enjoin her from so doing. Whatever right the wife had to bury her husband terminated with burial whether with or without her consent. Guthrie v. Weaver, 1 Mo.App. 136; Wynkoop v. Wynkoop, 42 Penn. 293, 82 Am. Dec. 506; In re widening Beekman Street, 4 Bradf. 503; Griffith v. Railroad, 55 Am. Rep. 5. (4) While it is ordinarily the right of the wife to bury the deceased husband, yet, when a body has once been buried, no one has the right to remove it without the consent of the owner of the grave, or leave of the proper ecclesiastical, municipal or judicial authorities. Pierce v. Cemetery, 10 R. I. 227, 14 Am. Rep. 667; Wynkoop v. Wynkoop, 42 Penn. St. 293, 82 Am. Dec. 506; Regina v. Sharpe, Dearsley & Bell, 160-163; Weld v. Walker, 130 Mass. 412, 39 Am. Rep. 466; Gardner v. Cemetery, 20 R. I. 646, 40 A. 871, 78 Am. St. 897; Anderson v. Acheson (Iowa), 110 N.W. 335, 9 L. R. A. (N. S.) 217; Guthrie v. Weaver, 1 Mo.App. 141. (5) The taking up and removing the body of Charles Litteral by defendant, under the circumstances shown in this case would have been felony (R. S. 1899, sec. 2229), or a misdemeanor (R. S. 1899, sec. 2231), and a misdemeanor under the common law. Keyes v. Konkel, 75 Am. St. 426; Wynkoop v. Wynkoop, 82 Am. Dec. 515, note 8.

OPINION

JOHNSON, J.

This is a suit in equity in which plaintiff prays that defendants be enjoined from entering upon Lot 131, Block 4, in Mount Hope cemetery in Jasper county and "from taking up or attempting to take up and remove therefrom the body of Charles Litteral or the casket and box in which said body is encased." A temporary injunction was issued, and served on defendants and on final hearing, it was made perpetual. Defendants appealed.

Plaintiff lives at Carterville in Jasper county and was the father of Charles Litteral. In 1905, the young man married defendant, Pauline, but for reasons not necessary to state, kept the marriage secret for several months. When his parents were informed of it, they were deeply displeased and manifested their feelings by abstaining from friendly intercourse with their daughter-in-law who was an actress and followed that vocation after her marriage. In the autumn of 1906, the health of Charles began to fail and it was discovered that he was suffering from tuberculosis of the lungs and bowels. He spent the winter in southern California, Arizona and Texas, part of the time accompanied by his wife. In February, 1907, they were together in El Paso and he consented to her joining a theatrical company which was en route to Mexico to fill engagements in that country. He went to San Antonio, where his health failed rapidly and his condition became so serious that he wrote his father to come to him. The father answered the summons and arriving at San Antonio, learned from physicians that his son's condition was hopeless. He defrayed all of the expenses, took his son to a sanitarium where he remained until the physicians thought him able to stand the journey to Missouri and then brought him back home to die. The young man lived about one month and then died in his father's house. He was buried in a lot owned by the father in Mount Hope cemetery near Joplin and the funeral and interment were conducted at the expense of the father and in a manner befitting the station of the deceased.

During the period covered by these events, defendant Pauline was traveling with her company in Mexico and did not learn of the critical illness and subsequent death of her husband until a week or more after his burial. She felt that his parents had withheld this knowledge from her purposely and hastened to the scene of his death. Arriving there, she notified plaintiff of her purpose to exhume the body and to remove it to Rock Island, Ill., for burial and employed undertakers to prepare it for shipment. This suit followed.

We approve the conduct of the learned trial judge in refusing to permit plaintiff to introduce evidence for the purpose of assailing the character of the young widow. We think all of the facts show beyond question that the marital relations between her and her husband remained unimpaired and normal to the hour of his death and that their frequent and, at times, prolonged separations were due to their financial necessities and not to the desire of either to live apart. This being true, it would have been contrary to all sense of decency and propriety for the courts to have suffered the character of the young woman to be attacked in a suit of this nature. As long as her husband was satisfied with her conduct, her marital rights continued and, as they remained unimpaired to the time of his death, her rights of widowhood could not be abated or affected by conduct which might have given her husband cause for ending the relationship.

It is not shown that the widow has any other reason for the assertion of a right to remove the body than a desire to gratify her own choice of its final resting place. Therefore, the vital question for us to decide is this: Has a widow who has been denied by stress of circumstances the sad privilege of burying her dead the absolute legal right, afterward, to disinter the body from the place where it was interred in a proper manner by the next of kin, for the purpose of reburial in a place more to her liking?

At common law, neither the widow nor the next of kin had the right to determine where the body should be buried. Indeed neither the law nor equity co...