Nemeth, Peter F.

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Legal Rights and Obligations to a Corpse

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Notre Dame Law ReviewVolume 19 | Issue 1 Article 69-1-1943Legal Rights and Obligations to a CorpsePeter F. NemethFollow this and additional works at: http://scholarship.law.nd.edu/ndlrPart of the Law CommonsThis Note is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by anauthorized administrator of NDLScholarship. For more information, please contact lawdr@nd.edu.Recommended CitationPeter F. Nemeth, Legal Rights and Obligations to a Corpse, 19 Notre Dame L. Rev. 69 (1943).Available at: http://scholarship.law.nd.edu/ndlr/vol19/iss1/6NOTESLegal Rights and Obligations to a Corpse. - "To whom does thisdead body belong?" The question posed assumes a new importance withan increase in divorce, separations, family disruptions, and the victimsof war. It is of interest to individual relatives of the dead, the attorneysettling the estate and, especially, the American funeral director.In the latter part of the nineteenth century, embalming was in itsinfancy, and the law seemingly well settled. Little controversy aroseas to who had the obligation or right to bury a particular corpse. Withthe development of the art of embalming, the law on this topic expanded.Expansion brought change. Legislative enactments aimed to protectpublic health by expediting the burial of the deceased.The interest in a dead person's body has long been recognized as aduty of the living although the nature of this interest has varied withthe civilization of particular countries and peoples. In Egypt, whereembalming was first practised on a large scale, the nature of the interestwas twofold: first, from the religious standpoint the body was to re-unite with its soul and therefore it should be preserved. A duty aroseto preserve the body and place it in a sepulchre; second, the duty wasplaced on the family as is evidenced by family tombs of the Pharohs.The early dwellers here in America gave evidence of their belief in theduty to bury the dead by their peculiar method of building mounds inwhich they sought to preserve their families.In modern times this duty is present if for no other reason than theprotection of the living. However, the duty to bury is imposed by law.1If there is such a duty to bury the dead that duty must be placedupon someone. We must, therefore, assume, that where there is a dutyto bury the dead there also must be a right to take possession of thebody for the execution of the duty and that any interference with thisright might be redressed by an action at law.The nature of this possession would seem to be obscure at commonlaw, which holds that there is absolutely no property right in a corpse,and the courts of the United States still refuse to treat a dead bodyas property in a material sense.2 The dead body is not property thatcan be held, in the sense of being held for funeral costs;3 althoughit may be disposed of by provisions of a will,4 it is not a part of theestate; it is not subject to a gift causa mortis, 5 and it is not larceny1 Burns Statutes 1933 Sec. 35-106, Sec. 63-602, Sec. 35-115, Sec. 2211 Penal Law(N. Y.).2 Orr v. Dayton & Muncie Traction Co. 1911, 178 Ind. 40. Renihan et al. v.Wright et al. 1890, 125 Ind. 536.3 Jefferson Co. Burial Society v. Scott 1928. 218 Ala. 354 118 So. 644.4 In re Thomas' Estate 1899, 56, Pac. 906. Enos v. Synder 1900, Contra, 63 Pac.170.5 Driscoll v. Nichols 71 Mass. 488-4f1, 1855.NOTRE DAME LAWYERto steal a corpse because it is not property.6 However, there must bea variance to the old common law rule that there is absolutely noproperty right in a dead body, to enable recovery of damages in certaincases. The right to the mere repose of the grave, although it isintangible and invisible, lacking the essential legal elements of (personalproperty), may nevertheless be property.7  This is the more liberalview taken by modern jurists challenging the common law view; andis based on the fact that whoever has dominion over a dead person'sbody should have some rights-and if he has exclusive rights forpurposes of burial and protection of the body, these rights should beprotected even if by a quasi-property right.8 Therefore, since thedead body is not real estate, as yet, nor attached to it, we must treatit as personal property.9Now that it is definitely established that a right to burial exists andis a legal right protected by the courtslO the question arises: who hasthis quasi-property right? Who is entitled to enforce and protectthese rights? It is only natural that a paramount right to thedominion over the dead person's body, exists in the surviving spouse.11However, the failure of the surviving spouse to promptly assert thisright to the body needing burial constitutes waiver, particularly wherethe surviving wife was not living with the husband at the time of hisdeath.12 In cas~s of this kind, the deceased's wishes are expresslyfollowed. Here again the law recognizes a property right, arising fromthe duty to bury the dead, requiring the survivors to take possessionfor the purpose of burial or lose that right.13Those entitled to possession of the dead person's body after thespouse would be the parents, or in the case of a parent when thereis a conflict between their issue, as between daughter and son, whereone has maintained filial relations with the deceased parent for anumber of years, and the other has not shown any affection for theparent, custody should then be awarded to the one maintaining suchrelationship.14Thus we find that it is generally held that the bodies of the deadbelong to the surviving relatives in order of inheritance and that they6 Toppin v. Moriarty 44 Ati. p. 469 1899.7 "The nature of rights in a dead body" 74 Penn. U. L. R. 404.8 Supra note No. 2 it is held that there is no property in a dead persons body;however, the right to bury and preserve the remains is recognized and protected as aQuasi or psuedo property right.9 Bogert v. City of Indianapolis 13 Ind. 134 1859.10 Aetna Life Ins. Co. v. Burton 1938 12 N. E. 2d. 360: Burns 40-1227 Ind.Statutes.11 No. 3 Ann cases 134; 14 Ann Cases 470; Ann cases 1918 D 733, 734.12 Southern Life & Health Ins. Co. et al. v. Morgan 21 Ala. app. 5. 105 So. 161; 12ar. 333.13 Ibid. note No. 13.14 6 Pa. Dist. Co. 275 (see C. J. New See. 42 p. 207).NOTESare entitled to protect and enforce these rights as property rights15even though they may be termed pseudo property rights. Where theserights are under contention the courts assume an equitable jurisdictionsomewhat analogous to the jurisdiction over the care and custody ofinfants, making such dispositions as seem to be best and right underall circumstances.16It is a fundamental legal concept that where there is a right thereis a corresponding duty; the quasi-property right which- entitles theheirs and survivors to the possession of the dead body is limited to theextent of the duty arising from sentiment and reverence to the memoryof the deceased.17 Therefore the heirs or survivors entitled to possessionof the dead body are responsible for a decent burial,18 and an actionwill lie against the heir or survivor, to whom a dead body is deliveredfor safekeeping, who fails to perform his duty.19Today much of the discussion as to the person upon -whom theduty of burial rests is eliminated by the funeral director who, uponauthorization, removes the body of the deceased, and embalms it, thusassuming the duty of burial and leaving only the question as to who isliable for the expense. The liability for funeral expense should fallupon the person' asserting the right to possession for the purposes ofburial and consequently, wherever the law places the duty to bury, thisduty brings a right to make charges against the assets of the estate.20Generally the liability for the funeral expense lies upon the persondelegated by the deceased; the one to whom he gave his property, andif he had no property, then it falls to his legitimate heirs. Where thedeceased dies intestate his administrator is liable for the funeral ex-penses; payable from the funds of the estate, however the right toassume possession of the deceased's body and the arrangement of hisburial is vesied in- his heirs. Compensation for funeral or burial ex-penses is not due from the deceased as a debt.21 Where there is noestate, the funeral director may seek compensation from the county. 2 2Some states hold that in the case of a married woman the obligationof her estate is paramount to the husband's duty.23 In most states the15 Bogert v. City of Indianapolis 13 Ind. 134 1859.16 17 C. J. p. 1138 note No. 13.17 56 Atl. 878; 125 Indiana 536.18 Pettigrew v. Pettigrew 1904 Penna. Decent burial means a funeral, whichconforms to the living standards of the deceased. -Ex. banker leaves estate $110,000.$100. is not considered decent funeral; whereas, for an indigent or pouper it would beconsidered adequate.19 125 Ind. 536 25 N. E. 822.20 45 N. E. 748.21 Hildebrand v. Kinney Administrator 172 Ind. 447 1909.22 Burns Indiana Statutes 1933 Sec. 52-133.23 In re Van Zandt's Will 247 N. Y. Supp. 441; 115 N. E. 492 Hatton v.Cunningham 162 N. Y. Supp. 1008; 1917. In re Davis' Estate 96 N. Y. Supp. 1106;47 N. E. 407; 1905.NOTRE DAME LAWYERcommon law holds the husband liable. In Indiana it was held thatthe funeral director may proceed against the wife's estate, although thehusband is ultimately liable.24 In the case of an infant the father isliable if he is financially able.25 Where the deceased is an infantsurvived by his mother only, the infant's estate, if any, would be liable,26if sufficient. If not, then the mother is responsible.27 Where the fatheris insolvent, the infant's estate is liable for its funeral expense; 2 8 and,where there was no other source of payment, the infant's estate haspaid for the father's funeral expenses.29 If the deceased's estate beinsolvent, it is held that the right and duty of payment of funeralcharges is paramount to payment of the deceased's debts.30The basis for determining a decent burial is that the deceased'sestate is liable to the extent of reasonable and necessary expenses inconnection with his burial in accordance with his station in life.31 Thecost of burial in case of the death of a wife or infant child may besaid to flow from the father's duty to provide necessities for his wifeand children.When the deceased dies intestate the duty created by statute to burythe deceased, also provides, that the burial be at public expense whenthere are no relatives or friends willing to assume the obligation.3 2Now, that we have established the nature of the interest in thedead human body and found that those who are his legitimate heirsinherit duties and their accompanying legal rights, insofar as burial isconcerned, we are faced with the problem that the deceased may haveaffected these interests and rights by his action prior to death, as to thedisposition of his remains.It is interesting to note that the funeral director may be delegatedby the deceased prior to death, to assume the protection of the deceased'srights ordinarily vested in his survivors or his executors. This contractis knoNn to the funeral director as a "pre-arranged funeral" by theterms of which the deceased's body is disposed of according to the lawsof public health and sanitation; with special emphasis to the deceased'sparticular wishes in regard to the manner and method of disposal of hismortal remains. This right of the deceased to control the disposal ofhis own bodily remains after death, seems to be a property right;24 Phillips et al. v. Tribbey et al. 1923 Ind. App. 141 N. E. 262.25 Rowe v. Roper et al. 1899 23 Ind. App. 27.26 In re Lyons Estate 1912 137 N. Y. Supp. 171.27 Ibid. No. 26.28 Mailten v. Mailten 1909 44 Ind. App. 559.29 In re Nevilles Estate 1933 263 N. Y. Supp. 528.30 In re Ellis' Estate 1920 179 N. Y. Supp. 873. Friedman v. Kelly 1933 266N. Y. Supp. 717.31 In re Biliman's Will 257 N. Y. S. 491 1932; In re Davis' Estate 114 N. Y. S.722 1905 ; In re Powers' Estate 134 N. Y. S. 967 1911.32 Supra 263 N. Y. Supp. 528 1933.NOTESinsofar as he exercises dominion over his body by means of a legaldocument it is merely a right existing in the deceased, to dispose ofhis body, by delegating the living to protect his right.33In the absence of such a contract the deceased may have donepractically the same thing by delegating his heirs to be, by will, toassume the duties and rights in connection with his burial.Thus, we find that the nature of the interest in a dead person's bodyis a pseudo or quasi-property right34 vested in his legitimate heirs andsurvivors in the order of inheritance of property,35 creating in thema duty36 to bury his mortal remains and giving them a right in lawto protect this duty;37 and finally that the deceased may, prior to death,have vested by legal document in anyone whomsoever he chooses theright to assume the dominion over his body for purposes of burial.38-Peter F. Nemeth.33 86 S. E. 30 ; 113 Eng. Repts. 1007.34 Re nihan et a!. v. Wright et al. 1890, 125 Ind. 536.35 Supra, 13 Ind. 134.36 56 At]. 878 Pettigrew v. Pettigrew; Supra, 125 Ind. 536.37 Supra, 12 A. L. R. 333. also ibid. 56 A. T. L. 878.38 Supra, 257 N. Y. S. 491, 1932.'

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Legal Rights and Obligations to a Corpse

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