Durell v. Hayward

75 Mass. 248

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1857
• Status: Published

Opinion

Bigelow, J.

The plaintiff had no right to erect a stone at the grave of the defendant’s wife without his knowledge or consent. The indisputable and paramount right, as well as duty, of a husband, to dispose of the body of his deceased wife by a decent sepulture in a suitable place, carries with it the right of placing over the spot of burial a proper monument or memorial in accordance with the well known and long established usage of the community. The defendant had therefore a right to remove the stone which the plaintiff had placed over the grave of his wife, in order to put in its stead the one procured by himself; and having taken it down without injury, and holding it in his possession, ready to be delivered up to the plaintiff on hex demand therefor, he has done no act for which an action of trespass will lie. Exceptions sustained.