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LEGAL STATUS OF THE DEAD BODY.
THE DISPOSAL AND OBLIGATION TO DISPOSE OF THE SAME; HOW
AND BY WHOM IT MAY BE EXHUMED OR REMOVED ;
OF RELATIVES AND ACCUSED PERSONS;
AN APPENDIX CONTAINING A SYNOPSIS OF THE STATUTES OF THE DIFFERENT STATES AND TERRITORIES OF THE UNITED
STATES CONCERNING SAME.
TRACY C. BECKER, A.B., LL.B., Counselor at Law; Professor of Criminal Law and Medical Jurisprudence, Law
Department, University of Buffalo, etc.
LEGAL STATUS OF THE DEAD BODY.
Disposal and Obligations to Dispose of the Same. -There is no right of property, in the ordinary sense of the word, in a dead human body; but for the health and protection of society it is a rule of the common law, which has been confirmed by statutes in all civilized states and countries, that public duties are imposed upon public officers, and private duties upon the husband or wife and the next of kin of the deceased, to protect the body of the dead from violation and see that it is properly interred, and to protect it after interment. A parent is bound to provide Christian burial for a deceased child, if he has the means, but if he has not the means, though the body remains unburied so long as to become a nuisance, he is not indictable for the nuisance, even if he could obtain money for the burial expenses by borrowing it of the poor-law authorities of the parish, for he is not bound to incur a debt (Reg. v. Vann, 2 Div. C. C., 325; 15 Jur., 1,090). On the other hand it has been held in England that every householder in whose house a dead body lies is bound by the common law, if he has the means to do so, to inter the body decently, and this principle applies where a person dies in the house of a parish or a union (Reg. v. Stewurt, 12 A. & D., 1,272). And the expense may be paid out of the effects of the deceased (Tugwell v. Hayman, 3 Camp., 298, and note).
In Pierce v. The Proprietors Swan Point Cemetery, 10 R. I., 227, s. C., 14 Am. Rep., 667, the Court said: “That there is no right of property in a dead body, using this word in its ordinary sense, may be well admitted, yet the burial of the dead is a subject which interests the feelings of mankind to a much greater degree than many matters of actual property. There is a duty imposed by the universal feelings of mankind to be discharged by some one toward the dead; a duty, and we may also say a right, to protect from violation; it may, therefore, be considered as a sort of quasi property, and it would be discreditable to any system of law not to provide a remedy in such a case; . . . but the person having charge of it cannot be considered as the owner of it in any sense whatever, he holds it only as a sacred trust for the benefit of all who may from family or friendship have an interest in it." See also Wynkoop v. Wynkoop, 42 Pa. St., 293; 4 Albany Law Jour., 56; Snyder v. Snyder, 60 How. Prac., 368; Weld v. Walker, 130 Mass., 422; Guthrie v. Weaver, 1 Mo. Apps., 136; Neighbors v. Neighbors, 65 S. W. 607, S.C., 23 Ky. L. Rep., 1,433; Buchanan v. Buchanan, 28 Misc. (N. Y.), 261; Johnson v. Marinus, 18 Abb. N. C., 72, and note.
The law casts the duty of burial of the wife upon the husband, and of the husband upon the wife. In Secord v. Secord (cited in note 1 above), the Court said: “There are cogent reasons connected with public policy and the peace of families, where in the absence of testamentary disposition the possession of a corpse and the right to determine its burial should follow the administration of the estate." Inasmuch as the husband has the first right to administer upon the estate of the wife, and the wife upon the estate of the husband, the law imposes the correl. ative duty of burial upon the person having such right; and so it has been held that the husband is liable for the necessary expense of the decent interment of his wife from whom he has been separated, whether the party incurring the expense is an undertaker or mere volunteer.”
But if the deceased dies intestate, leaving no husband or wife, the duty of burial is cast upon the next of kin, in the order of right to administration.'
Where the deceased leaves a will appointing executors, the executors have a right to the possession of the body, and the duty of burial is imposed upon them, but it has been doubted
? A valuable note is appended to this last case, citing the law literature of burial-grounds, burials, etc., and also giving in full the opinion of the Special Term of the New York Supreme Court, in the case of Secord v. Secord, not elsewhere reported. And see also The Law of Burial, 4 Bradf., 503 (Matter of Beekman St.).
? Ambrose v. Kerreson, 10 C. B., 776; Bradshaw v. Beard, 12 Com. B., n. S., 344; Johnson 0. Marinus, 18 Abb. N. C., 72; Hewitt o. Bronson, 5 Daly, 1; Cunningbam v. Reardon,
98 Mass., 538. See also Gleason t. Warner, 78 Minn., 405, where it is held further that when the husband “ neglects to discharge the duty of burying his dead wife he is liable to one who provides for her necessary and reasonable burial."
3 Secord v. Secord, supra ; Foley c. Phelps, 1 App. Div. (N. Y.), 551; Wynkoop v. Wynkoop, 42 Pa. St., 293: Bogert v. Indianapolis, 13 Ind., 135; Snyder v. Snyder, 60 How. Pr., 368; Law of Burial, 4 Bradf., 503.