
    Matter of the Application of Catherine E. Richardson for Leave to Remove the Body of Her Husband, Claude E. Richardson, Deceased.
    (Supreme Court, Madison Special Term,
    October, 1899.)
    1. Burial — Right of widow to determine where her husband shall be buried.
    Where a husband has in no manner expressed a preference as to the place of his burial, his widow has an absolute right to determine it.
    
      3. Same — Change of place of sepulchre — Consent — Estoppel.
    The fact that a widow, in feeble health and in great grief at the sudden death of her husband from an accident, did not at the time of the funeral object to a place of burial which had been selected practically by others, does not amount to an irrevocable consent upon her part to that selection, nor will it estop her from thereafter applying to the court for permission to remove her husband’s body to another place of sepulchre which she prefers and where she intends to erect a monument not only to him hut also for herself.
    Application for leave to remove a body from one cemetery to another. '
    E. W. Cushman, for petitioner.
    O. W. Underbill, for Lamott Richardson and others.
   Fobbes, J.

This is an application made on the affidavits of Mrs. Richardson and others for leave to remove the body of her husband irom a cemetery located at Hamilton Center to a cemetery situate near the village of Hamilton.

At the time of the death of Mr. Richardson, the petitioner and the deceased had lived together and kept house in the villages of Hamilton and Norwich for nine years. At the time of his death, his wife was in extremely feeble health, so much so that the news of his death, which was accidental, was kept from her until the tiext day. The funeral took place four or five days after Mr. Richardson was killed.

There are some violent contradictions in the affidavits which were used on this motion, but I think the circumstances of the ■case and the condition of the petitioner were such that it is not unreasonable to infer that the affidavits on the part of the petitioner probably state with greater accuracy what actually took place in reference to the burial.

The affidavits of two of her attending physicians, and the eir•cumstances of her state of health, at this most trying period, render it quite probable that she did not then appreciate the gravity of the situation in reference to the disposition of her husband’s body; and it is suggested in the moving affidavits that she was so far broken down in health and, at the announcement of his death, j so stricken with grief, that she was nearly frantic, during the time which preceded her husband’s burial; and while she attended the brief funeral services and went to the grave, that whatever was said or done, with reference to the burial of her husband, was practically said and done by someone else.

In this distressing and unfortunate state of affairs, I do not' believe justice requires that she should be regarded as consenting that the place of burial should be a permanent one. It must be found rather that it was an emergency which she did not know how to meet and one which she had no time or opportunity to consider in advance.

Having purchased a plot of land in the cemetery at Hamilton, she now desires leave to remove the body of her husband from its place of interment to the new cemetery, Woodlawn, and there erect a monument to his memory. This is clearly her choice, since the monument is designed not only for her husband, but also for herself at the time of her decease.

It is undoubtedly the law of this State, Massachusetts, Michigan and Minnesota —1 and in my judgment reflects the application of common sense to the domestic business affairs of life — that the husband or wife has the superior right to select for the other the place of interment and for the dead of that union. This has been held arbitrarily to be the rule in all cases where the deceased has not expressed a preference, either by will, or by oral declarations, selecting the place of interment, or expressing a wish that it should take place in a spot fixed upon and located by the individual. The question does not seem to have been much before the courts of this State, but it is quite clear that the trend of the decisions in this State is that way. Snyder v. Snyder, 60 How. Pr. 368; 55 Alb. L. J. 434; Mitchell v. Thorne, 57 Hun, 405; S. C. affd., 134 N. Y. 536; Foley v. Phelps, 1 App. Div. 551; S. C., 3 N. Y. Anno. Cases, 81, and note; Buchanan v. Buchanan, 28 Misc. Rep. 261.

There are many cases in point in other States, where the same doctrine is discussed and the rule upheld. Durell v. Hayward, 9 Gray (Mass.), 248; Meagher v. Driscoll, 99 Mass. 281; Weld v. Walker, 130 id. 422; Burney v. Children’s Hospital, 169 id. 57; Larson v. Chase, 47 Minn. 307; S. C., 50 N. W. Rep. 238; S. C., 14 L. R. A. 85, and note; Hackett v. Hackett, 18 R. I. 155; S. C., 49 Am. St. Rep. 762, and note.

The moving affidavits also show that the husband, prior to his death, made a promise to purchase a lot, in Woodlawn cemetery; that the question of his place of burial was talked over by him with his wife and with some of his associates, and that seems to be the place of interment which had been selected by him.

The opposing affidavits also contain the declarations of the husband of his desire to be buried in the family burying ground at Hamilton Center, where his remains are now interred. But I think, from the fact that they had been living apart from his father’s family continuously for nine years, taking into account their undoubted affection for each other, in his later years it is not strange that he should have expressed to his wife the place where he desired both to finally rest. This seems to be the more natural and reasonably probable conclusion which he had deliberately reached. The circumstances are such, considering the prior and present place of residence of the wife, the circumstances under which the declarations were made, that if he had any wish on the subject, the wish was expressed substantially as it is shown in the moving affidavits and at a later period than those disclosed by the opposing affidavits.

Assuming then that he designated Woodlawn cemetery, at Hamilton, as his place of burial, the courts have settled that question, and I am neither inclined to overrule the courts, nor to disregard the deceased’s wishes in the premises. Johnston v. Marinus, 18 Abb. N. C. 72, and note; Thompson v. Deeds, 93 Iowa, 228; S. C., 61 N. W. Rep. 842; S. C., 35 L. R. A. 56.

Knowing all of these facts, if the wife freely and understandingly consented ' to his interment in the Bichardson burying ground, where his body now lies, she would be estopped from removing it to the location now desired; but, under the circumstances of this case, I do not believe that at the time the petitioner had any settled conclusions about the burial of her husband, and while she may have suffered it to take place at his present grave,. I think equity requires that she should not be charged with waiving her rights of burial, nor with consenting, at that time, to a permanent resting place for her husband. A case in point will be found-in Weld v. Walker, 130 Mass. 422. See, also-, Hackett v. Hackett, 18 R. I. 155; S. C., 26 Atl. Rep. 42.

I am forced, therefore, to hold that she did not consent, that her rights have not been waived, and that she may remove the body to another place of sepulchre. Hackett v. Hackett, 49 Am. St. Rep. 762, and note.

The prayer of the petitioner, to remove the body of Glande E. Richardson from Hamilton Center, for the purposes of reinterment in Woodlawn cemetery, near Hamilton village, N. Y., is granted, but without costs.

Application granted, without costs. .  