Sacred Heart of Jesus Polish National Catholic Church v. Soklowski
| Decision Date | 16 May 1924 |
| Docket Number | 23,932 |
| Parties | SACRED HEART OF JESUS POLISH NATIONAL CATHOLIC CHURCH v. VERONICA SOKLOWSKI |
| Court | Minnesota Supreme Court |
Petition for Reargument Filed June 13, 1924
Action in the district court for Anoka county to restrain the removal of the body of Joseph Soklowski from the lot where interred in plaintiff's private cemetery. The case was tried before Giddings, J., who made findings and ordered judgment in favor of plaintiff. From an order denying her motion for amended findings and conclusions or for a new trial, plaintiff appealed. Reversed.
Church officer not precluded from testifying to conversations with decedent.
1. An officer of plaintiff, a congregation owning a cemetery, had not such an interest in the result of this suit, involving the removal of a corpse buried in the cemetery, that he is precluded, by section 8378, G.S. 1913, from testifying therein as to conversations with a deceased person upon an issue in the suit.
Cemetery may bring suit to restrain removal of corpse.
2. The owner of a cemetery may maintain an action in equity to enjoin the disinterment of a body buried therein.
View of court erroneous.
3. The court erred in the view that, as to the place of interment the known wishes of the deceased "should be scrupulously carried out and that the wishes of the survivors" should be secondary.
Right to select place of burial and reburial.
4. The surviving spouse has the right to select the place of burial of the deceased spouse, in the absence of a testamentary disposition of the body, but the last wish of the deceased if known is to be considered. Once buried with the acquiescence of the surviving spouse, a removal should not be allowed except for cogent reasons, but, if such reasons are made to appear, the surviving spouse has the right of the selection of the place of reinterment, the last known wish of the deceased also to be considered.
Last wish of decedent to be considered.
5. The last wish of the deceased is to be taken into consideration and not prior ones of contrary import.
Finding not sustained.
6. The evidence indicates that the court erred in finding that the deceased desired to be buried in plaintiff's cemetery.
Thompson, Hessian & Fletcher, for appellant.
Patterson & Rorem, for respondent.
Plaintiff, a duly organized religious corporation, owns a cemetery in Anoka county, wherein defendant's husband, in June, 1916, was buried in a lot selected by her son and upon which has been erected a stone monument. Plaintiff, although claiming to teach and confess doctrines identical with those held by the Roman Catholic Church, is independent of its authority and discipline, does not recognize the Pope as its head, and holds its property in its own name. Defendant and her children, all grown, are Roman Catholics, and members of a local congregation of that faith in northeast Minneapolis. The Roman Catholics have a large, well-kept cemetery in the city of Minneapolis, known as St. Mary's, for the interment of all of that faith now being buried in that city. Defendant desires to remove the body of her husband from plaintiff's cemetery and reinter it in St. Mary's. Plaintiff brought this suit to enjoin her from so doing. The trial resulted in findings in favor of plaintiff, and defendant appeals from the order denying her motion for amended findings or a new trial.
There are two main contentions on this appeal viz.: (a) That the court erred in permitting officers of plaintiff to testify as to conversations with Joseph Soklowski, defendant's husband, wherein he expressed his desire to be buried in plaintiff's cemetery; and (b) that the findings are not sustained by the evidence.
The statute prohibiting a party interested in the event of an action from testifying concerning conversations with or admissions of a deceased person relative to the subject matter at issue (G.S. 1913, § 8378), as construed by this court, means that the interest in order to exclude the witness "must be pecuniary, certain, direct and immediate, and not an uncertain, contingent, remote or merely possible interest." Perine v. Grand Lodge A.O.U.W. 48 Minn. 82, 50 N.W. 1022; Havlicek v. Western Bohemian Fr. Assn. 138 Minn. 62, 163 N.W. 985. It is clear that a trustee or officer of plaintiff can have no interest of the sort above described in the final resting place of the corpse of defendant's husband.
We have been cited to no case where the controversy relating to the place of interment has been between the owner of a cemetery as the sole party on the one side and the family of the deceased unitedly on the other. [1] This is such a case. It is also somewhat unique in that the corpse has remained interred for these many years in plaintiff's cemetery during which time the family cared for the grave and have erected a substantial stone monument thereon.
In the oral argument it was questioned whether plaintiff had such claims or equities in the final resting place of this corpse as to maintain the suit. In a strict legal sense there are no property rights in a dead body, especially after burial. And, although no legal action may be maintained respecting injuries thereto, it is well settled that equity will protect such rights as surviving relatives may have touching the care and location of the grave, the interest of the public in the undisturbed repose of the dead, and the latter's expressed wish, if any, as to their final resting place. In the instant case, Joseph Soklowski was one of the organizers of plaintiff congregation, took an active part in acquiring this cemetery, had expressed often to its officers and others his desire of being buried therein, and had been so buried. As owner of this cemetery, in guarding the repose of the dead therein interred, and as interested in carrying out the expressed desire of its members as to their final resting place, we think there can be no question of plaintiff's right to maintain an action of this sort.
That plaintiff is a member of a growing national organization of churches; that it has an adequate, though modest, church building, where divine worship is maintained; that it has a resident priest; that it owns this cemetery of 5 acres wherein over 80 persons are buried; that it now has a substantial fence around it; that it is laid out in lots with driveways; that trees have been planted; and that it is moderately well kept up; that Joseph Soklowski was an ardent member of plaintiff; that he selected a burial lot in its cemetery and repeatedly expressed a strong desire to be buried therein, and that he was so buried with the acquiescence of defendant and her children, are facts found which are not open to serious dispute upon this record.
But the propriety of this finding, one of mixed fact and law, must be questioned, viz:
"That the final sepulture of the deceased has been established in exact accordance with his well known wish and desire, and that while the undersigned can fully appreciate and has great respect for the personal and religious sentiments which prompt the defendant to insist that the remains of her husband should be disinterred and re-buried in a cemetery and lot in which she and their children expect to ultimately lie, the defendant and her children have apparently failed to realize and appreciate that it is a sentiment and practice of almost universal application that the known wishes of the deceased as to the disposition of his body should be scrupulously carried out and that the wishes of the survivors in this respect should be secondary to those of the deceased."
We are impressed that the learned trial court erred in taking the position, indicated by the above finding, that the expressed wish of the deceased is the primary consideration and that of his survivors secondary. The statement in Thompson v Deeds, 93 Iowa 228, 61 N.W. 842, 35 L.R.A. 56, that "it always has been, and will ever * * * 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" does not express the whole law on the subject of burial, for that decision also respects the rights of the...
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The concept of sepulchral rights in Canada and the U.S. in the age of genomics: hints from Iceland.
...(242.) In re Keck, 171 P.2d 933, 936 (Cal. Dist. Ct. App. 1946). (243.) Sacred Heart of Jesus Polish Nat'l Catholic Church v. Soklowski, 199 N.W. 81, 83 (Minn. (244.) See Leschey v. Leschey, 97 A.2d 784, 786 (Pa. 1953). (245.) See Hughes v. Harden, 151 P.2d 425, 427 (Okla. 1944). (246.) See......