Vaughan v. Vaughan

• Decision Date: 01 April 1936
• Citation: 200 N.E. 912,294 Mass. 164
• Parties: VAUGHAN v. VAUGHAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

294 Mass. 164

200 N.E. 912

VAUGHAN

v.VAUGHAN.

Supreme Judicial Court of Massachusetts, Middlesex.

April 1, 1936.

Suit in equity by Margaret G. Vaughan against Lilah M. Vaughan. From an adverse decree, defendant appeals.

Decree modified, and, as modified, affirmed.Appeal from Superior Court, Middlesex County; Morton, Judge.

A. T. Smith and A. T. Smith, Jr., both of Boston, for appellant.

J. T. Pugh, of Boston, for appellee.

PIERCE, Justice.

This is a suit in equity by the widow of Walter W. Vaughan, who died in Newton, Massachusetts, on July 28, 1934, to compel his sister, the defendant, to deliver up his body to the plaintiff or to permit the plaintiff to remove said body from a cemetery in Portsmouth, New Hampshire, where it had been buried in the defendant's lot without the plaintiff's assent. The answer alleged, in substance, that a decree nisi for divorce had been granted said Walter W. Vaughan on June 19, 1934, that the defendant buried the body with the plaintiff's assent, acting in accord with the decedent's wishes, and that the suit was brought to vex the defendant. The case was heard in part on oral testimony, which is stenographically reported in the record, and in part upon certain records and exhibits, copies of which are printed in the record. The trial judge filed ‘Findings and Rulings' and ordered a decree for the plaintiff. A final decree was entered ordering the defendant to permit the plaintiff to remove the body and to execute and deliver to the plaintiff all necessary documents for said removal ‘providing that the laws of the State of New Hampshire permit the removal.’

It is settled that on an appeal in equity, with a report of all the evidence, ‘this court will review the evidence and decide the case for itself. But where oral testimony has been heard, the finding of the trial judge as to facts will not by reversed unless it is plainly wrong.’ George W. Gale Lumber Co. v. Bush, 227 Mass. 203, 206, 116 N.E. 480, 481;Gordon v. Willits, 263 Mass. 516, 519, 520, 161 N.E. 881;Jennings v. Demmon, 194 Mass. 108, 111, 80 N.E. 471. The trial judge found that the deceased owned at his death a lot in a cemetery in Newton, Massachusetts. He ruled that there is no right of property in a dead body; that controversies as to the place of burial are within the jurisdiction of a court of equity; that equity gives the right of removal of a dead body even after a suitable burial, ‘if for laudable purposes and not against the expressed intention of the deceased.’ The reported evidence warranted the judge in finding that the decedent ‘bought the lot in Newton with the intent that it should be his family lot, and owned it at the time of his death.’ He ruled that under the provisions of G.L.(Ter.Ed.) c. 114, §§ 31, 32, the son and wife apparently had the right to be interred in said lot, and found ‘It is only natural that the mother, no matter what her feelings towards her husband were, should desire that he should be interred in a lot which in time would be used by a much loved child with whom she would naturally be interred’; and that such ‘a desire is entirely laudable and in accord with what are the natural wishes of her husband.’

It may be noted that the will of the husband, printed in the record, contains no reference to his cemetery lot or to his place of burial. In England the executor has the right to the possession of the body of his testator and the duty to bury it. Williams v. Williams, 20 Ch. Div. 659. In this commonwealth the right to possession of the dead body is in the surviving husband or wife, with the duty of burial, and not in the executor or administrator where there is no expressed wish of the testator as to the disposition of the remains. The wishes of the surviving husband or wife will control against the next of kin. Burney v. Children's Hospital, 169 Mass. 57, 58, 47 N.E. 401,38 L.R.A. 413, 61 Am.St.Rep. 273, and cases collected. Weld v. Walker, 130 Mass. 422, 39 Am.Rep. 465;Durell v. Hayward, 9 Gray, 248, 69 Am.Dec. 284;Sheehan v. Commercial Travelers' Mutual Accident Association of America, 283 Mass. 543, 553, 186 N.E. 627, 88 A.L.R. 975. To the same effect see Hackett v. Hackett, 18 R.I. 155, 26 A. 42,19 L.R.A. 558, 49...