No. 2--96--0181
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IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
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In re ESTATE OF ROBERT LEE ) Appeal from the Circuit Court
MEDLEN, Deceased ) of Kane County.
)
) No. 90--PKA--603
)
(Tifney Sarrels, on Behalf of )
Chastity Sarrels, Petitioner- ) Honorable
Appellee, v. Deborah Kreciak, ) Gene L. Nottolini,
Adm'r, Respondent-Appellant). ) Judge, Presiding.
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JUSTICE THOMAS delivered the opinion of the court:
The administrator of Robert Medlen's (decedent's) estate,
Deborah Kreciak, appeals an order granting a petition to exhume
decedent's body for DNA testing and denying a request for an
injunction to prevent petitioner, Tifney Sarrels, from proceeding
in the Illinois Industrial Commission (the Commission). The
administrator raises the following issues for our consideration:
(1) whether the court lacked jurisdiction to order a body exhumed
in another state; (2) whether petitioner presented sufficient
reasons for the court to order an exhumation; and (3) whether the
court erred in denying the administrator's request to enjoin
petitioner from proceeding in the Commission. We affirm in part
and vacate in part.
In 1989, the Department of Public Aid (the Department) brought
a paternity action against decedent to determine if he was the
father of petitioner's daughter, Chastity. Decedent was defaulted,
but the default was later vacated when decedent agreed to a blood
test. Apparently decedent did not show up for the test, and the
court ordered another blood test. The case was dismissed without
prejudice when the Department learned that decedent had died.
In the probate division of the circuit court, the
administrator filed an affidavit of heirship stating that her son,
Robert Lee Medlen III, was decedent's only child and the sole heir
of his estate. On October 31, 1990, the court entered an order
declaring Robert Lee Medlen III decedent's sole heir.
On October 13, 1995, petitioner filed in the probate case a
petition to have decedent exhumed for DNA testing. Petitioner
alleged that decedent was the father of her daughter, Chastity
Sarrels, who was born on November 29, 1987. The petition further
alleged the following: that petitioner had filed a complaint in the
Commission seeking workers' compensation death benefits and that
the estate objected to the claim because of the lack of direct
proof of Chastity's paternity; that in the paternity action,
decedent had twice failed to comply with orders for blood tests and
died without ever submitting to those tests; and that the estate
knew of the existence of Chastity when the estate was opened, but
failed to notify her of the opening of the estate or of the
benefits decedent's son was awarded under the Workers' Compensation
Act (the Act) (820 ILCS 305/1 et seq. (West 1994)).
On October 25, 1995, the administrator filed a petition for
injunctive relief, asking the court to enjoin petitioner from
proceeding in the Commission. The petition stated that decedent's
son had been awarded $325.33 per week by the Commission on December
25, 1990, and that on September 30, 1993, a claim had been filed on
behalf of Chastity, claiming that she was also an heir of decedent
and entitled to death benefits. The administrator argued that the
Commission could not adjudicate the issue of heirship because
paternity had not been established during decedent's life.
On November 21, 1995, the administrator filed her response to
the petition to exhume. The administrator argued that the court
lacked jurisdiction to order the exhumation because an exhumation
order is not within the subject matter jurisdiction of the probate
court and because the body was not buried in Illinois. The
administrator also argued that petitioner had not shown sufficient
reasons to have the body exhumed.
On December 11, 1995, petitioner's law firm filed a reply to
the response to the petition to exhume and a response to the
petition for injunctive relief. However, both were filed in the
name of "Intervenor Della Medlen." The record does not indicate
who Della Medlen is. The reply to the response to the petition to
exhume did not address the jurisdictional issue and merely argued
that there were compelling reasons for disinterment. The
administrator moved to strike both the reply and the response,
arguing that Della Medlen had never filed an appearance and had no
standing. The court ordered that the reply to the response to the
petition to exhume and the response to the petition for injunctive
relief be amended to reflect petitioner's name instead of Della
Medlen's. The administrator then filed her reply to the response
to the petition for injunctive relief.
On January 12, 1996, the court entered an order denying the
petition for injunctive relief and granting the petition to exhume.
The court's order contains neither the reasons for its decision nor
an explanation of how the court had jurisdiction to order a body
exhumed in a sister state. The court agreed to stay the exhumation
order pending appeal.
On February 9, 1996, the administrator filed a motion to
reconsider, arguing that the court had no jurisdiction to order the
exhumation because decedent was buried in Iager, West Virginia.
The administrator attached her own affidavit to the motion. In the
affidavit, she states that decedent is buried in West Virginia. On
February 13, 1996, the court denied the motion. The court's order
does not contain reasons for the decision. On the same day, the
administrator filed her notice of appeal.
We first consider the court's jurisdiction to order decedent's
body exhumed in another state. The arguments presented to this
court by both parties are sketchy, confusing, and inadequate to
address an issue of first impression. However, the person bringing
an action bears the burden of establishing jurisdiction (McKnelly
v. Whiteco Hospitality Corp., 131 Ill. App. 3d 338, 340 (1985)),
and we do not believe petitioner has demonstrated any basis by
which the circuit court could order a body exhumed when the body is
buried in another state. No Illinois case has addressed this
question, and the only case we could find from another jurisdiction
directly addressing the issue is Resnick v. State, 319 So. 2d 167
(Fla. App. 1975). Resnick was a criminal appeal in which the
defendant argued that it was improper to admit testimony concerning
the victim's skull. The court stated the following:
"The skull, with the remainder of the body, had been buried in
another state. Therefore, the trial court had no jurisdiction
to order the authorities of a sister state to exhume the skull
for examination." Resnick, 319 So. 2d at 168.
However, the court neither cited authority nor gave reasons for its
decision.
At common law, there is no property right in a dead body (22A
Am. Jur. 2d Dead Bodies §2 (1988)), and the body forms no part of
the decedent's estate (In re Estate of Fischer, 1 Ill. App. 2d 528,
535 (1954)). The nearest relatives of the deceased have a quasi-
property right in the body; this right arises out of their duty to
bury the dead. 22A Am. Jur. 2d Dead Bodies §3 (1988). In
Illinois, this right has been construed to give the next of kin the
right to determine the time, manner, and place of burial. Fischer,
1 Ill. App. 2d at 532; see also Leno v. St. Joseph Hospital, 55
Ill. 2d 114, 117 (1973) ("The principle is firmly established that
while in the ordinary sense, there is no property right in a dead
body, a right of possession of a decedent's remains devolves upon
the next of kin in order to make appropriate disposition thereof,
whether by burial or otherwise"). However, once the body is
buried, it becomes "part and parcel of the ground to which it is
committed." 25A C.J.S. Dead Bodies §2 (1966). Upon burial, the
body is generally viewed as being in the custody of the law (22A
Am. Jur. 2d Dead Bodies §70 (1988)), but the next of kin do have a
protectable interest in the body that would allow them to challenge
a disinterment (Hough v. Weber, 202 Ill. App. 3d 674, 685 (1990)).
Initially, the administrator suggests that the court lacked
subject matter jurisdiction. The administrator did not develop
this argument in her appellate brief, but relied in the circuit
court on Fischer, 1 Ill. App. 2d at 535, for the proposition that
the probate court has no general equitable jurisdiction over the
interment and disinterment of dead bodies. However, restrictions
upon the jurisdiction of a court hearing probate proceedings were
removed by the Judicial Article of 1964 (Ill. Const. 1870, art. VI
(1964), §9), which abolished the probate courts. In re Estate of
Engel, 87 Ill. App. 3d 273, 277 (1980); In re Estate of Tarr, 37
Ill. App. 3d 915, 917 (1976). "The circuit court has unlimited
original jurisdiction of all justiciable matters, and the
heretofore limited jurisdiction of the probate court has been
superseded by the unlimited original jurisdiction of the circuit
court. The probate division of the circuit court is a court with
subject matter jurisdiction equal to any other division of that
court." 19 I.L.P. Executors and Administrators §5 (1991). The
disinterment of dead bodies is subject to the control of courts of
equity (22A Am. Jur. 2d Dead Bodies §70 (1988)), and we find no
impediment to the court's general subject matter jurisdiction over
a petition to exhume.
Nevertheless, because the dead body, after burial, becomes
part of the land and is said to be within the "custody of the law,"
we believe that a court can only resolve a dispute over
disinterment when the body is within that state's territorial
jurisdiction. The administrator argues that a dead body is a piece
of property and that the court did not have in rem jurisdiction
over it. The administrator cites Hanson v. Denckla, 357 U.S. 235,
246, 2 L. Ed. 2d 1283, 1293, 78 S. Ct. 1228, 1236 (1958), for the
proposition that the basis of jurisdiction in rem is the presence
of the subject property within the territorial jurisdiction of the
forum state. Petitioner responds that the court had subject matter
jurisdiction and in personam jurisdiction and thus did not need in
rem jurisdiction. Petitioner argues that the court's order did not
order anyone in West Virginia to do anything and that all parties
affected by the court's order reside in Illinois.
Clearly, as both parties recognize, the court did not have in
rem jurisdiction because the body was not buried in Illinois. See
Hanson, 357 U.S. at 246, 2 L. Ed. 2d at 1293, 78 S. Ct. at 1236.
However, petitioner suggests that the court had personal
jurisdiction over all the necessary parties and therefore could act
in an extraterritorial manner on the property. Petitioner is
correct that where the court has in personam jurisdiction over the
interested parties and its equitable powers are invoked, the court
may affect property outside its territorial jurisdiction indirectly
by acting directly on the interested parties. De Licea v. Reyes,
87 Ill. App. 3d 704, 707 (1980). This is not such a case. The
court had jurisdiction over the estate and the parties, but neither
the body nor the land in which it is buried is in the possession of
the parties or the estate. The court could not act indirectly on
the dead body by acting directly on the parties before it because
the body was not within their control. The body became part of the
land of West Virginia and is in the custody of the law of that
jurisdiction. By ordering an exhumation, the court was ordering
someone in West Virginia, over whom it had no jurisdiction, to do
something. Petitioner has failed to show any basis upon which the
court had jurisdiction to enter the exhumation order.
For all of the above reasons, we find that the court did not
have jurisdiction to order decedent's body exhumed. Although
exhumation disputes are within the subject matter jurisdiction of
the circuit court, the court cannot order an exhumation when the
body is buried in another state. In such a case, the court does
not have in rem jurisdiction over the body nor can the court affect
the body by acting in personam on the parties, as the body is not
within the court's or the parties' control. We believe that
petitioner must file her petition for exhumation in West Virginia.
Our resolution of this issue renders unnecessary a discussion of
whether petitioner met her burden for obtaining a disinterment.
Finally, we consider the administrator's contention that the
court erred in denying her request for an injunction to prevent
petitioner from proceeding in the Commission. The administrator
relies on Board of Trustees v. Shaw, 136 Ill. App. 3d 671, 674
(1985), in which the court explained in dicta that an illegitimate
child must prove paternity before recovering under the Act and that
paternity cannot be imposed after death. Shaw relied on Toms v.
Lohrentz, 37 Ill. App. 2d 414, 418 (1962). However, the court in
Reddick v. Murray, 266 Ill. App. 3d 333, 335 (1994), pointed out
that Toms relied on language that has since been repealed and that
section 9(b) of the Illinois Parentage Act of 1984 (750 ILCS
45/9(b) (West 1994)) contemplates a paternity action surviving the
death of the putative father. Therefore, because the only basis
for the administrator's argument--that paternity cannot be
established after death--is no longer the law in Illinois, we
reject the administrator's argument and affirm the decision of the
circuit court denying her request for an injunction.
The judgment of the circuit court of Kane County denying the
administrator's request for an injunction is affirmed, and the
judgment granting the petition for exhumation is vacated.
Affirmed in part and vacated in part.
McLAREN and RATHJE, JJ., concur.