Mallen v. Mallen
| Decision Date | 25 October 1974 |
| Citation | 520 S.W.2d 736 |
| Parties | S. T. MALLEN and Lester Cohn, Appellants, v. Brenda Frumin MALLEN and Jerry Marsh, Appellees. |
| Court | Tennessee Court of Appeals |
Weill, Ellis, Weems & Copeland, Chattanooga, for S. T. Mallen.
Howard I. Levine, Chattanooga, for Lester Cohn.
Berke, Berke & Berke, Chattanooga, for Brenda Frumin Mallen.
This controversy involves a widow's attempt to remove the remains of her husband from a burial plot owned by his family to another cemetery.
On March 21, 1972, Steven Mallen was killed in an airplane crash and his body was buried in a family plot in Mizpah Cemetery at Chattanooga. After obtaining a disinterment permit from the Department of Public Health, on July 3, 1974, Brenda Frumin Mallen, widow of the deceased, proceeded to disinter the remains. On the same day as the attempted disinterment, S. T. Mallen, father of the deceased, and Lester Cohn, vice-chairman of the Control Board of the Mizpah Cemetery, commenced this action by filing a complaint in the chancery court and obtained a temporary restraining order prohibiting the removal of the body.
After a hearing on the merits, the chancellor dissolved the restraining order, directed the cemetery to permit the disinterment and entered judgment in favor of Brenda Frumin Mallen and against the plaintiffs, S. T. Mallen, and his sureties for $150.00.
It is apparent from this record that since the death of Steven Mallen his parents and widow have not had a harmonious relationship. To the contrary, the parties have lived in continuous hostility. Very shortly after the death of Steven Mallen the parents filed litigation in federal court and later a suit in the chancery court against the widow concerning the family business. In fact, as the chancellor said, the relationship has 'progressively worsened' into a state of bitterness.
The plot where Steven Mallen was buried was acquired by his father in 1962 and contained several grave sites. There is no question from the proof but that the elder Mallens intended to exercise control and dominion over the burial plot. They have refused to permit the widow to erect or place any marker, footstone or make changes or alteration in the grave site. It was the elder Mallens' testimony that a spot was being reserved beside Steven Mallen for the burial of his widow but there is no mention of places of burial for Brenda and Steven Mallen's children.
The plaintiffs place great stress upon the fact that the parties are Jewish and that the Jewish customs, traditions and canons of their religious faith do not favor disinterment. It is also emphasized that the soil in a Jewish cemetery is sacred ground and that 'it is pleasing to a man to rest with his ancestors.'
It is universally held in this country that courts of equity have jurisdiction in controversies between proponents and opponents of the disinterment and removal of remains. Beatty v. Kurtz (1829), 2 Pet. 566, 7 L.Ed. 521. In determining such controversies the courts do not permit the civil law to be circumscribed or superseded by the canon law of a religious faith. However, the tenets of the faith may have an indirect efficacy in determining whether a body may be disinterred or removed. See Goldman v. Mollen (1937), 168 Va. 345, 191 S.E. 627, where the court said:
'Jewish law, as such, is no more to be followed in Virginia than is Chinese law, but it may be shown competent and important to show the custom and wishes of those who observe its mandates, and this is particularly true when they believe that they are in part divine.'
We find no cases in this state dealing with the disinterment of a body. In other jurisdictions there are numerous decisions. Where there is no statutory authority, it appears there is no universal rule to be applied but each case must depend upon its own facts and circumstances. 25A C.J.S. Dead Bodies § 4(1); 22 Am.Jur.2d, Dead Bodies, Sec. 26. See annotation and cases collated in 21 A.L.R.2d 472.
While the right to have a body remain undisturbed is not absolute, the courts do not...
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...once it had been suitably buried. Estes v. Woodlawn Mem'l Park, Inc., 780 S.W.2d 759, 763 (Tenn. Ct. App. 1989); Mallen v. Mallen, 520 S.W.2d 736, 737 (Tenn. Ct. App. 1974). In the words of Justice Cardozo, then a member of the New York Court of Appeals, "[t]he dead are to rest where they h......
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In re West
...cause to be shown for it.Pettigrew v. Pettigrew , 207 Pa. 313, 56 A. 878, 880 (1904) (emphasis added); see also Mallen v. Mallen , 520 S.W.2d 736, 737–38 (Tenn. Ct. App. 1974) (stating "the wishes of the spouse seem to command first consideration"). The majority places undue emphasis on the......
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