Estes v. Woodlawn Memorial Park, Inc.

• Decision Date: 22 September 1989
• Parties: A.N. ESTES, Jr., Plaintiff-Appellant, v. WOODLAWN MEMORIAL PARK, INC., Claude Palmer and Virginia Palmer, Defendants-Appellees. 780 S.W.2d 759
• Court: Tennessee Court of Appeals

Page 759

780 S.W.2d 759

A.N. ESTES, Jr., Plaintiff-Appellant, v. WOODLAWN MEMORIAL PARK, INC., Claude Palmer and Virginia

Palmer, Defendants-Appellees.

780 S.W.2d 759

Court of Appeals of Tennessee,

Middle Section, at Nashville.

Sept. 22, 1989.

Published Pursuant to Tenn.Ct.App.R. 11.

Thomas E. Watts, Jr., Nashville, for plaintiff-appellant.

John E. Quinn, Walter Clark, Nashville, for defendants-appellees.

OPINION

TODD, Presiding Judge.

The plaintiff, A.N. Estes, Jr., has appealed from a nonjury judgement dismissing his suit seeking the disinterment of the remains of his deceased wife and daughter from a plot in Woodlawn Memorial Park for reinterment in Mt. Olivet Cemetery.

As would be expected, the interrelationships of families are involved in the present controversy.

Mae Binkley and Minnie Binkley were sisters. Mae married plaintiff and became Mae Binkley Estes. Nettie Sue Estes was born to this marriage. Minnie married a man named Morris and became Minnie Binkley Morris. Virginia Morris was born to Minnie Binkley Morris and her husband and is the niece of Mae Binkley Estes and the cousin of Nettie Sue Estes. Virginia married Claude Palmer and became Virginia Morris Palmer. Mr. and Mrs. Palmer are sued as the owners of the burial plot from which the removal of said remains is sought.

In October 1981, the defendants Palmer purchased their plot adjoining the plot of Mrs. Morris, mother of Mrs. Palmer and sister of Mae Binkley Estes. At the time of the purchase, the purpose of the plot was discussed. It was announced that three of the graves in the Palmer plot were intended for plaintiff, his wife and his daughter. The wife and daughter expressed their desires to be buried in the plot.

On June 21, 1984, the daughter, Nettie Sue Estes died. Her mother, Mae Binkley Estes, made all funeral and burial plans with the acquiescence of plaintiff. Nettie Sue was buried in one of the graves in the Palmer lot which had been reserved for plaintiff, his wife and daughter.

After the death of Nettie Sue, her mother, Mae Binkley Estes, ceased to live with plaintiff. On January 7, 1985, Mae Binkley Estes died. Plaintiff signed the following document:

To whom it may concern:

I, A.M. Estes, Jr., husband of Mrs. Mae Estes, who died on January the 7th 1985, hereby give permission to Claude and Virginia Palmer to make arrangements for the funeral of Mrs. Estes at Roesch Patton Dorris and Charlton Funeral Home.

Plaintiff asserts that the preceding did not authorize the selection of the place of burial. However, he attended the funeral and burial and made no objection to the burial arrangements. Plaintiff also asserts that he signed the agreement under duress because the attorney for the Palmers threatened him with an inquisition of lunacy if he did not do so. At the time, plaintiff exhibited some evidence of mental imbalance including an insistence that the remains of Nettie Sue Binkley Estes be cremated against her expressed wishes. Under the circumstances, this Court does not find duress sufficient to invalidate the agreement.

On January 11, 1985, the remains of Mae Binkley Estes were interred in one of the graves reserved in the Palmer plot for plaintiff, his wife and daughter. Plaintiff was present and did not object.

Virginia Palmer testified that the remaining grave of those allocated to the three members of the Estes family is reserved for the remains of plaintiff, and that she and her husband are willing to convey to plaintiff the right of burial of his remains in said grave.

On March 19, 1987, plaintiff filed this suit seeking to compel the consent of Mr. and Mrs. Palmer for the disinterment of the remains of Mae Binkley Estes and Nettie Sue Estes and to compel Woodlawn Memorial Park, Inc., to perform the disinterment.

Upon hearing the cause fully, the Trial Judge found the issues in favor of the defendants and dismissed plaintiff's suit.

On appeal, plaintiff presents two issues, of which the first is as follows:

I. Can the paramount right of a surviving husband and parent to select the final burial place for his deceased wife and daughter be overridden by the wishes of the wife's relatives?

There is no universal rule regarding the right of persons to bury the dead, but each case must be considered in equity on its own merits. Sacred Heart of Jesus Polish National Catholic Church v. Soklowski, 159 Minn. 331, 199 N.W. 81, 33 A.L.R. 1427, (1924); Pettigrew v. Pettigrew, 207 Pa. 313, 56 A. 878, 99 Am.S.R. 795, 64 L.R.A. 179 (1904); Burnett v. Surratt, Tex.Civ.App., 67 S.W.2d 1041 (1934).

No matter in whom the right of burial rests, it is in the nature of a sacred trust for the benefit of all who may, from family ties or friendship, have an interest in the remains. Southern Life Health Ins. Co. v. Morgan, 21 Ala.App. 5, 105 So. 161, cert. den. 213 Ala. 413, 105 So. 168 (1925); Teasley v. Thompson, 204 Ark. 959, 165 S.W.2d 940 (1942); Wales v. Wales, 21 Del.Ch. 349, 190 A. 109 (1936).

The right of sepulchre is not absolute, but must yield when in conflict with the public good, or the demands of justice require a subordination. Tkaczyk v. Gallagher, 26 Conn.Supp. 290, 222 A.2d 226, affirmed, 153 Conn. 744, 220 A.2d 163 (1966); Gray v. State, 55 Tex.Cr. 90, 114 S.W. 635, 22 L.R.A.N.S. 513 (1908).

Absent an expressed desire of deceased, the surviving spouse and, if no surviving spouse, the next of kin, has the right of custody and burial of the remains of the deceased. 25A C.J.S. Dead Bodies Sec. 3, pp. 491, 492, notes 11, 12.

The spousal right of burial may not apply when the spouses had separated and were not living together at the time of death. Rosenblum v. New Mt. Sinai Cemetery Assn. Mo.App. 481 S.W.2d 593, 54 A.L.R.3d 1031 (1972); Southern Life & Health Ins. Co. v. Morgan, supra; Dutton v. Brashears Funeral Home, 235 Ark. 120, 357 S.W.2d 265 (1962).

The right to control burial may be waived. Teasley v. Thompson, supra; Fischer's Estate v. Fischers, 1 Ill.App.2d 528, 117 N.E.2d 855 (1954); Foster v. Foster, Tex.Civ.App. 220 S.W. 215 (1920); Southern Life & Health Ins. Co. v. Morgan, supra; Dutton v. Brashears Funeral Home, supra.

It is generally recognized that every person has the right to determine the disposition which shall be made of his body after death. Fidelity Union Trust Co. v. Heller, 16 N.J.Super. 285, 84 A.2d 485 (1951).

It has been held that the wishes of the deceased are paramount, that the right of a decedent to determine the disposition of his remains is a personal right, not testamentary in character, that legal compulsion may not attach to the wishes of deceased which are nevertheless entitled to respectful consideration, are entitled to great weight and ordinarily are given effect even in the face of opposition by the surviving spouse or next of kin. 25A C.J.S. Dead Bodies Sec. 3, p. 494, notes 18.45 18.50, 18.55, 18.60, 19.

There is a distinction between rights existing prior to burial and those after burial, because after its interment the remains are in the custody of the law. Disinterment of a dead body is not a matter of right, a disturbance of its resting place and its removal are subject to the control and direction of a court of equity and, this generally requires the exercise of discretion by the Court. 25A C.J.S. Dead Bodies Sec. 4(1) pp. 495, 496 notes 28, 28.5, 29, 29.5.

Disinterment of a body is not favored in the law. Strickland v. Tant, 41 N.C.App. 534, 255 S.E.2d 325, cert. den. 298 N.C. 304, 259 S.E.2d 917 (1979).

Except in cases of necessity and for laudable purposes, it is the policy of the law that the sanctity of the grave should be maintained and that a body, once suitably buried, should remain undisturbed. A court will not ordinarily order or permit a body to be disinterred unless there is a strong showing that it is necessary and that the interests of justice require it. However, there is no universal rule and each case must depend on its own facts and circumstances. 25A C.J.S. Dead Bodies Sec. 4(1), pp. 496, 497, notes 30, 30.5, 31, 32.

In determining whether a dead body should be disinterred for burial elsewhere, the courts will generally take into consideration whether the one claiming the right of disinterment consented to the first place of interment. Sullivan v. Catholic Cemeteries Inc., 113 R.I. 65, 317 A.2d 430 (1974); Theodore v. Theodore, 57 N.M. 434, 259 P.2d 795 (1953).

Thus, subject to exceptions, a decedent's spouse who has consented to the burial of decedent's body in a certain place cannot afterward remove the remains against the will of decedent's next of kin or the owner of the plot. 25A C.J.S. Dead Bodies Sec. 4(2) pp. 504, 505, notes 66, 67, 67.5.

The uncontroverted evidence shows that both Mae Binkley Estes and Nettie Sue Estes, wife and daughter of plaintiff, expressed their desire to be buried where their bodies now lay, that the body of Nettie Sue was buried at its present resting place at the direction of her mother with the acquiescence of plaintiff, and that plaintiff expressly agreed for the defendants Palmer to plan and pay for the funeral of Mae Binkley Estes who was buried in her present resting place by the acquiescence of plaintiff.

It is also uncontradicted that a grave is reserved and available for the burial of plaintiff with his wife and daughter.

Plaintiff's only justification for disinterment of the bodies of his wife and daughter is that he desires to be buried with them in another location because of a supposed animosity of the Palmers toward him which they deny.

The evidence and the above cited law fully support refusal of disinterment. No merit is found in plaintiff's first issue.

Plaintiff's second,...