Opinion
14219.
SEPTEMBER 22, 1942.
Equitable petition. Before Judge Paul S. Etheridge. Fulton superior court. April 13, 1942.
Barrett Nall, for plaintiff.
Prestwood Hall, Spalding, Sibley, Troutman Brock, and Harvey Hill, for defendants.
The right to remove the remains of a deceased wife from the place of original burial, and to have them reinterred elsewhere, is one that belongs to the surviving husband. Such right is not an unqualified one; and while there may be circumstances in which the courts will not lend their aid toward its exercise, no such situation is presented by the record in the instant case.
No. 14219. SEPTEMBER 22, 1942.
On November 4, 1939, L. A. Rivers filed his petition against Greenwood Cemetery Inc., and B. H. Hambrick, alleging as follows: Petitioner's wife, Mrs. Minnie Ollie Rivers departed this life on October 22, 1932. At that time he did not own the easement in any burial lot in said cemetery, but desired to inter the body of his deceased wife in a lot in which the easement of the right of burial was fixed in time; and to this end he entered into negotiations with his daughter, Mrs. B. H. Hambrick, who represented to him that she was the owner of a certain lot in said cemetery and offered to sell one half of said lot to him. It was then agreed by him and Mrs. Hambrick that he would buy the easement of the right of burial in the lot adjoining her lot; it being agreed by them that said burial lot was to be equally divided between him and her and that he was to have the half of said lot upon which the body of his deceased wife was buried. It was further agreed by them that when he acquired the easement of the right of burial in said adjoining lot he would retain the half of said adjoining lot which was immediately adjacent to the half of said lot on which the body of his deceased wife was buried, and that Mrs. Hambrick was to have the half of said lot immediately adjacent to the half of the lot she was to retain as her own. Out of this agreement he bought said adjoining lot on November 28, 1932, and in March, 1933, the mother of B. H. Hambrick was interred on the lot by the side of petitioner's deceased wife. He now learns that the title to the lot on which his deceased wife is interred belongs to and is owned by B. H. Hambrick. It was petitioner's intention to reserve a grave on the lot on which his wife is buried, for the purpose of his own burial; but since another body has been interred on said lot, this can not be done. He desired to have the body of his wife removed from the lot on which she is now buried to the adjoining lot now owned by him, and has procured the necessary permit from the health authorities authorizing such removal, and has complied with all the requirements of the law. Since title to the lot on which his wife is buried belongs to B. H. Hambrick, the Greenwood Cemetery Inc. will not remove said body or permit its removal without the written consent of B. H. Hambrick. Petitioner has requested him to permit the body of petitioner's wife to be removed from his lot, and, while offering no objection to such removal, he refuses to execute or sign a written consent or authority that the same be done. Petitioner's wife is buried on lot 21 of section A of Greenwood Cemetery. By reason of the burial of the mother of B. H. Hambrick, it became impossible for petitioner's daughter to carry out her agreement, or for B. H. Hambrick to do so for her. After acquiring the deed to the easement in said adjoining lot, petitioner sought to remove the remains of his wife thereto; and he alleges that said removal could be made without injury to the lot in which she is now buried, or to any person or persons whomsoever. He prays, that the court decree that he be permitted to have the body of his deceased wife reinterred, that the defendants be enjoined from interfering with him in the disinterring and removal of the remains; and for general relief. Mrs. B. H. Hambrick, Mrs. Bessie Baggett Lyon, Mrs. Annie M. Hubbard, and Marvin L. Rivers intervened as parties defendant, and together with B. H. Hambrick moved to dismiss the action. The motion was sustained, and L. A. Rivers excepted.
The authorities are to the effect that a dead body is quasi property over which the relatives of the deceased have rights which the courts will protect. See Louisville Nashville R. Co. v. Wilson, 123 Ga. 62 ( 51 S.E. 24, 3 Ann. Cas. 128). The right to the possession of the dead body of his wife for the purpose of preservation and burial belongs to the husband. Medical College of Ga. v. Rushing, 1 Ga. App. 468 ( 57 S.E. 1083). Where one is permitted to bury his dead in a public cemetery by the express or implied consent of those in control of it, he acquires a sort of possession in the spot in which the body is buried. Jacobus v. Congregation of Israel, 107 Ga. 518, 520-521 ( 33 S.E. 853, 73 Am. St. R. 141). B. H. Hambrick owned no title to the burial lot from which the removal was sought, but only a mere easement or license. Mayor c. of Savannah v. Colding, 181 Ga. 260 ( 181 S.E. 821), and cit. As a corollary to the foregoing proposition, it would seem to follow that the husband has the right to remove the remains of his wife from the spot where they first reposed and reinter them elsewhere; provided this right be exercised in a proper manner, and from motives which do not appear to be unreasonable. According to the allegations of the petition the place of original burial was by the husband selected under a misapprehension. His desire is to remove them a few feet away to an adjoining lot purchased by him, where is room for his own body also to be buried in the future. As to the right of the surviving spouse, over the objection of other near kindred, to remove the body of the other from the place of its first interment, the decisions from other jurisdictions are not in harmony. Numerous rulings on the question may be found in the notes appended to the reports of the following cases: Sherrard v. Henry, 21 A.L.R. 645; Sacred Heart v. Soklowski, 33 A.L.R. 1427; Perez v. Gil, 35 A.L.R. 43; Yome v. Gordon, 47 A.L.R. 1165; Pettigrew v. Pettigrew, 207 Pa. 313 ( 56 A. 878, 64 L.R.A. 179, 99 Am. St. R. 795). On the general subject see Grinnan v. Fredericksburg Lodge, 118 Va. 588 ( 88 S.E. 79, Ann. Cas. 1918D 729); 18 Abbotts New Cases, 75.
While the right of removal is not uniformly recognized as an absolute one belonging to the surviving husband or wife, many courts have held, under circumstances which, although not exactly the same as those presented in the instant case, nevertheless afforded grounds no less reasonable and sound, that the reinterment should be permitted. To permit the husband to reinter the body is but to grant him a right to exercise his choice as to the place of burial on a lot owned by him, and on a spot which would permit his body, when his own death occurs, to be placed near by. According to the petition, he thought, at the time of the original burial, the above two objects were accomplished. He seeks now no profanation, or any indignity to the dead, but merely the fulfillment of his original purpose.
It was erroneous to dismiss the action.
Judgment reversed. All the Justices concur.