
    Owen Cooney, as Executor of the Last Will and Testament of Patrick English, Deceased, Plaintiff, v. George English et al., Defendants.
    (Supreme Court, Kings Trial Term,
    June, 1914.)
    Wills—Direction to executor as to interment—Reinterment—Who SHALL BEAR EXPENSE.
    Where the son of a decedent causes his remains to be interred, not knowing that he had left a will in which he expressed a desire to be buried in a particular cemetery, the executor is entitled to possession of the remains for removal and reinterment.
    The question of who shall bear the expense of such removal and re-interment can only be determined on the judicial settlement of the accounts of the executor.
    Action by an executor to obtain possession of the remains of deceased for removal and reinterment.
    Edward B. Thomas, for plaintiff.
    Moore, William & Upson (William Austin Moore, of counsel), for defendant English.
    Owens, Gray & Tomlin, for defendant St. John’s Cemetery.
   Benedict, J.

This is an action by the executor of one Patrick English, deceased, to obtain possession of the remains of said deceased, now interred in St. John’s Cemetery at Middle Village, L. I., for removal and reinterment in St. Mary’s Cemetery at Wilkesbarre, Penn., in accordance with the directions of said deceased contained in his will. The action is opposed by the defendant George English, a son of deceased, who, in ignorance of the fact that Patrick English had left a will, caused his remains to be interred in St. John’s Cemetery shortly after his death, which occurred on November 29, 1911. The objection mainly replied on by said defendant (although not pleaded as a defense) is laches, based upon the claim that it was nearly a year after the death of Patrick English before his will was presented for probate. I find no such statement in the agreed statement of facts upon which this case is submitted for decision. But, assuming it to be true, I do not think the wishes of the deceased should be set at naught merely because of the delay of the executor in bringing forward the will. The law, as I infer from the authorities which I have consulted, gives great weight, if not controlling force, in such matters to the wishes of the deceased. Thus in Pierce v. Swan Point Cemetery, 10 R. 1. 227, where the widow of deceased had caused his remains to be removed from the place in which he had been buried at his own request, the court directed them to be restored to the original place of burial at the instance of deceased’s daughter. See also, Matter of Donn, 14 N. Y. Supp. 189; Snyder v. Snyder, 60 How. Pr. 368, 369, 370; Matter of Richardson, 29 Misc. Rep. 367, 369; 14 Am. Law Rev. 61; 4 Bradf. 532. While the expressions on this subject contained in the authorities cited may not in all cases be very clear, they all indicate that the wishes of the deceased in the matter are paramount to all other considerations.

In the case at bar the will contains an express direction as to the place of interment,—for the word “ desire ” must be deemed to have been used in an imperative sense—and neither the executor nor the court is at liberty to disregard it. It is, of course, true that the remains of a deceased person should not be removed from the place of sepulture for light reasons. But compliance with the testator’s positive direction is not, in my judgment, a light reason, but a controlling one.

The question of who shall bear the expense of removal and reinterment cannot be determined in this action for the requisite parties are lacking. That will come up on the final accounting of the executor.

Judgment for the plaintiff, permitting him to remove the remains of Patrick English from the St. John’s Cemetery for the purpose aforesaid, and enjoining the defendants from interfering with such removal, the defendant St. John’s Cemetery to furnish all usual facilities for such removal and to be paid its proper fees, subject to the right of the estate of deceased to any rebate on giving up the grave.

Judgment accordingly.  