Thompson v. Deeds

35 L.R.A. 56, 93 Iowa 228

• Court: Supreme Court of Iowa
• Decided: January 16, 1895
• Status: Published

Opinion

Kinne, J.

I. The fact that the plaintiff holds the legal title to the lot wherein, rest the remains of her dead father is not, to onr minds, of controlling importance, in determining as to the right of the defendant to remove his remains. If the title was held by a stranger, there might be reason for removing the remains of the deceased to a lot, the title toi which was in some member of his family. Especially so if he was bnried in a lot under the mistaken belief that he or some member of his family owned it, when in fact it belonged to some one else. As it is, the owner of the lot being his daughter, we do not see that there is any reason for disturbing his remains. He knew who held the title to this lot, and more than once, during his lifetime, expressed a wish that when he died he might be interred therein, beside the remains of his first'wife. This wish was properly carried out by his last wife, and that ought to end the matter. A proper apprecia.tion of the duty we owe to the dead, and a due regard for the feelings of their friends who survive, and the promotion of the public health and welfare, all require that the bodies of the dead- should not be exhumed, except under circumstances of extreme exigency. No emergency exists in this case.

For some reason, — it matters not what, — his daughter is unwilling that her stepmother should erect a monument upon this lot, not only in memory of her deceased husband, but also in memory of his first wife, and of plaintiff’s first husband. Having assented to her father being buried in her lot, she: ought not to be heard to say that his wife shall not erect thereon, to his memory, a suitable monument. Deceased wanted to be buried there; plaintiff wanted Mm thus gratified, and lie was buried in her lot; and, under such, circumstances, defendant musit be field to have the unquestioned right to properly improve and adorn his last resting place. It would be a doctrine abhorrent to our sense of what is right and just to say that, after deceased bad been buried in plaintiff’s tot, she alone should be permitted to testify to her affection for him by the erection of a monument to his memory, and by otherwise adorning and embellishing Ms last resting place. When plaintiff consented to the burial of her father in her tot, she knew, or ought to have known, that that consent involved the right on the part of Ms widow to- manifest her appreciation of and affection for the deceased in the usual way, followed from time immemorial by those who respect and revere their dead. This daughter and this widow should exercise a little Christian charity; should remember that, whatever their differences may be, they should, be tost sight of in the presence of the dead, and obliterated in a common desire and effort to suitably testify to their respect for one who was, as to one of them, a father, and, as to the other, a husband. What matters it that the law has said that after burial of a husband the wife shall have no control over his remains; that his next of kin have the exclusive right of disposition thereof? This court has said that for some purpose, at least, the widow is to be treated as next of kin. French v. French, 91 Iowa, 140, 51 N. W. Rep. 146. But however that may be, as applied to a case like this, it is of no moment. It always has been, and will ever continue to be, the duty of courts to see to it that the expressed wish of one, as to his final resting place, shall, so far as it is possible, be carried out. In one view, it is true it may not matter much where we rest after'we are dead; and yet there has always existed, in every person, a feeling that leads him to wish that after his death his body shall repose beside those he loved in life. Call.it sentiment, yet it is a sentiment and belief-which the living should know will be respected after they are gone.

We think the District Court erred. It should have entered a decree for plaintiff, enjoining the removal of the body of Philip Deeds, and authorizing the defendant to erect upon the lot in which rest- his remains a monument to his memory, with proper inscriptions. Under the peculiar circumstances of this case, defendant’s right in this respect should be properly guarded, as to the size and location of the monument, having in mind the plaintiff’s right to occupy and use the rest of the lot. We think that no inscription should be permitted to be placed upon the monument, in any way .referring to the plaintiff or her first husband, whose remains lie in said lot.

Defendant should not be permitted to erect a coping around said lot To do co would be a virtual act of appropriation of the whole lot, which, under the circumstances, would, we think, be manifestly improper. The decree should be broad enough to permit both parties, as well as any of the kin-of the deceased, to, at their pleasure, decorate the grave of the deceased with flowers, and, in so doing, not to interfere with each other. The case will be remanded to the District Court, with instructions to proceed in conformity with the views herein expressed. — Reversed.