Smith v. Shepherd

• Decision Date: 14 April 1803
• Citation: 64 N.J.E. 401,54 A. 806
• Parties: SMITH v. SHEPHERD et al.
• Court: New Jersey Court of Chancery

54 A. 806

64 N.J.E. 401

SMITH

v. SHEPHERD et al.

Court of Chancery of New Jersey.

April 14, 1803.

(Syllabus by the Court.)

Bill by Elenore Smith against Emma Shepherd and others to permit complainant to remove the body of her late husband. Dismissed.

Florence Rose, for complainant.

MAGIE, Ch. The bill in this cause was filed by Elenore Smith, the widow of Edwin Smith, and its purpose is to obtain a decree permitting her to remove the body of her late husband from a lot in Fairmount Cemetery, in the city of Newark, in which it was buried, to another lot in the same cemetery, and enjoining the defendants from preventing such removal. There is also a prayer for an injunction against the defendants preventing complainant from visiting the grave in which the remains of complainant's husband now are, and planting flowers upon it, and keeping it decorated. The defendants to the bill are the Fairmount Cemetery Association and Emma Shepherd, the owner of the lot in which the remains of complainant's husband are now buried. The Fairmount Cemetery Association filed an answer, submitting itself to the judgment of the court. The defendant Emma Shepherd filed, pro se, a paper presumably intended to be an answer. Upon exceptions filed thereto, the answer was found insufficient, and liberty was given to file another answer. The defendant did not avail herself of the permission, and a decree pro confesso was made against her, and the complainant was ordered to produce proofs to sustain the allegation of her bill of complaint. Proofs having been taken, the matter was brought to hearing ex parte, and an application was made for a decree in conformity with the prayer of the bill.

The rights of parties and the powers of this court in respect to matters such as are the subject of this bill have been so recently and carefully considered and expounded in this court that it is only necessary to refer to the principles which have been, in my judgment, correctly settled. It is thus settled that there is no property right in a dead body; that upon the death of a married person the surviving husband or wife is entitled to the custody of the dead body, and charged with the duty of furnishing proper burial; that when that duty has been discharged, and the remains of the dead have been buried, the right of custody in the surviving husband or wife at once ceases, and it may properly be said that the dead body thereafter is in the custody of the law, because the disturbance of its resting place and its removal is subject to the control and direction of a court of equity in any case properly before it. Peters v. Peters, 43 N.J.Eq. 140, 10 Atl. 742; Toppin v. Moriarty, 59 N.J.Eq. 115, 44 Atl. 409. In Peters v. Peters, supra, upon these doctrines, a widow was enjoined from removing the remains of her deceased husband from the cemetery lot belonging to his father, in which he had been buried with her consent. In Toppin v. Moriarty, supra, the court enjoined a husband from interfering with and preventing the removal of the remains of his deceased wife, which had been buried, with his consent, in the cemetery lot of her father, and its re-burial in another lot in the same cemetery, provided by her father. The ground upon which the court exerted its authority in that case was that the original interment of the wife's body in a lot procured by her father was consented to by her husband, in conformity with the request of his wife, before her death, that she should be buried in a lot in which her father and mother were afterwards to be buried, and that the father, after the interment, had arranged to exchange the lot in which the remains were buried for another lot, which was deemed a better one, which arrangement was with the consent of the husband, and the father had, with the knowledge of the husband, and without any objection from him, expended a large sum of money in preparing the lot which he obtained in exchange for his burial plot, and with the known intention to remove thereto the remains of his daughter.

The problem in this case is whether, upon the circumstances presented by the proofs, the relief asked, or any part of it, should be granted. The proofs disclose that the complainant was the second wife of the deceased, Edwin Smith, and that he was a brother of Emma Shepherd, the defendant. At some time, not clearly fixed by the evidence, the defendant became the owner of this burial plot in Fairmount Cemetery, and her brother, afterwards complainant's husband, agreed with her that he would take one-half of the lot, and pay one-half its cost. This arrange ment was made at the time of the death of the brother's first wife, and she was buried in that plot. The brother thereafter married the complainant, and at his death left her surviving, with three children, the offspring of his first wife, and three other children, the offspring of complainant. He had not then paid to his sister, the defendant, the one-half of the cost of the cemetery plot, or any part of the cost. When, upon his death, it became necessary to arrange for his burial, the complainant proposed to the defendant to pay the one-half of the cost of the burial plot, which she was aware had not been paid by the deceased. Defendant then informed her that she had been obliged to sell two spaces in that plot, that she intended reserving two other spaces, and that there remained but a single vacant space therein for a grave, but that complainant might make use of that space for the burial of her husband. Complainant accepted this permission, and it was further agreed between them that the grave might be so constructed that the complainant, upon her death, might also be interred therein. By the direction of the...