Wynkoop v. Wynkoop
| Decision Date | 21 April 1861 |
| Citation | 42 Pa. 293 |
| Parties | Wynkoop <I>versus</I> Wynkoop. |
| Court | Pennsylvania Supreme Court |
APPEAL from the Common Pleas of Schuylkill county.
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E. P. Dewees and F. W. Hughes, for appellants. — 1. The title of appellant to burial lots No. 352 and 364 in Mount Laurel Cemetery, Pottsville, is valid and exclusive, and can only be curtailed or defeated by her own acts, of which there is neither proof or allegation.
The remedy by injunction cannot extend to a party who shows no right. The legal right to remove these remains is averred in the bill, but unless a property or right in the mortal remains of her deceased husband is shown, she cannot enter upon the grounds of the respondent to remove them.
There is no right of property in such remains, from their very nature. No authority for such claim can be shown in any civilized community from the time of Adam. But there are laws to secure interments and maintain their inviolability thereafter. Funeral expenses are preferred in the settlement of estates of decedents — the larceny of the vestments which enclose their remains is punishable by law, on complaint of the executor or administrator. The heir has a property in the monuments and escutcheons of his ancestors, but none in their bodies or ashes: 2 Bl. Com. 429.
2. The mother, who owned these lots, could have maintained a civil action against any one that disturbed remains therein interred.
3. Nor has the complainant by reason of the alleged promises of the respondents. A court of equity will not seek to enforce rights which have no legal existence, nor can legal rights be acquired by an agreement in relation to that which, in contemplation of law, has no value.
In an action by the widow for breach of this agreement or promise, what would be the measure of damages? But there was no such agreement, as the testimony abundantly shows. All injunctions are predicable on rights: Stockdale v. Ullery, 1 Wright 487; Rhea v. Forsyth, 1 Id. 507. See also the Case of Stephen Girard's Remains, reported in the P. L. Journal.
Benj. W. Cumming, for appellee. — 1. The question of property in the remains is totally irrelevant to the real question. If a dead body is not the subject of property, it follows that no right of property is violated by a lawful disinterment. The disinterment of a corpse without authority, might be an indictable offence, as amounting to a public misdemeanor, irrespective of any question of property. And a conspiracy to prevent a burial is indictable at common law, and for the same reasons probably a conspiracy to prevent a lawful disinterment might be held an indictable offence. See note Hood on Ex'rs. 35. To inter a dead body is not to treat it as property. No right of property, therefore, is necessarily claimed or exercised in the mere change of burial-place. Nobody ever supposed that to bury the deceased in a manner suitable to his rank and circumstances, which is among the rights and duties of an administrator, is associated with any idea of property in the corpse. No acts of ownership are thereby exercised. Hence the idea of property in the remains may be dismissed as irrelevant to the true question.
2. In reply to the second branch of the argument, it is only necessary to remark that the appellant has but an easement in the burial lot, the legal title to the same being vested in the officers of the corporation of Trinity Church, who are the custodians of the cemetery, and make no objection. No injury to the exclusive rights of burial claimed will be done by a removal of the remains. The only injury will be to the asserted right of retaining the remains, because they happened to be deposited in the lot of ground in question as a temporary resting place, with a reservation of the right of removal, agreed to and acquiesced in at the time by all parties. This agreement, on the part of the mother and collateral relatives, in regard to the future removal of the remains, was, in our view of the case, wholly unnecessary, as the authority of the widow and administratrix is ample without it. The right and duty of burial is in the administratrix. This is in accordance with all authorities. This right appertained to her office as well as to her near relation to the deceased. To select a spot for his final resting-place, therefore, is necessarily included in her right to bury, and this right can neither be barred, waived, or abandoned by a temporary interment, with or without the promises of the relatives on the subject. We think the agreement is fully proved and established. It is said that a court of equity will not enforce an agreement relative to a subject which, in legal contemplation, has no value. This must refer of course to the all-pervading idea of property in the remains — not to the independent right of removal, which is of inestimable value to the afflicted widow. The value of the right of removal to the administratrix and widow, is confounded with the idea of property in the remains, or made to depend on it, a fallacy already answered by showing it to be totally disconnected with the duty of burial. It is urged that the agreement is nudum pactum, and not legally binding, and therefore may be violated with impunity. If the complainant stood upon the agreement alone, as the basis of her right of removal of the remains, she might answer the undue advantage sought to be taken by the plea of nudum pactum, by saying that courts of equity have allowed exceptions to the rule where the contract, although voluntary, is deemed to be founded upon a meritorious consideration: 2 Story's Eq. 783; 1 Id. § 169; Stockdale v. Ullery, 1 Wright 486.
The defendants below have confederated together to prevent an administratrix and widow from the exercise of a clear legal right. An injunction is therefore awarded against them to restrain their acts, and protect the rights of complainant in a case where adequate redress at law is unattainable. Damages at law would be wholly inadequate to the vindication of complainant's rights. See Sheetz's Appeal, 11 Casey 95. If the wishes of the deceased, expressed in his lifetime, are to rule the case, the evidence is overwhelming in favour of the complainant. But the superior authority of the mother and collateral kindred is urged on scriptural grounds, "bone of their bone," &c. This argument is conclusively answered in Genesis ii. 24: "Therefore shall a man leave his father and his mother and shall cleave unto his wife: and they shall be one flesh."
We add nothing more than the following authorities on the subject of disinterment to...
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...often described as flowing from the "universal... right of sepulture," rather than from a concept of property law. Wynkoop v. Wynkoop, 42 Pa. 293, 300-01, 1861 WL 5846 (1862). As cases involving unauthorized mutilation and disposition of bodies increased toward the end of the 19th century, ......
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