DEAD BODY. A corpse.
There is no right of property, in the or dinary sense of the word, in a dead human body; Co. Inst. 202; 4 Bla. Com. 235; Meagh er v. Driscoll, 99 Mass. 281, 96 Am. Dec. 759; Pierce v. Proprietors of Swan Point Cemetery, 10 R. I. 227, 14 Am. Rep. 667; 3 Edw. Ch. 155; 5 W. R. 318; 2 Wms. on Ex., 7th Am. ed. 165 n.; but there are rights at tached to it which the law will protect ; 10 Cent. L. J. 304; and for the health and pro tection of society, it is a rule of the common law, and this has been confirmed by statutes in civilized states and countries, that public duties are imposed upon public officers, and Private duties upon the husband or wife and the next of kin of the deceased, to protect the body from violation and see that it is properly interred, and to protect it after it is interred; 1 Witthaus & Becker's Med. Jur. 291.
It has been suggested that the right of the living in their dead might be classified with those rights which arise out of tie family relation ; 5 Harv. L. Rev. 285; 13 id. 63; Larson v. Chase, 47 Minn. 307, 50 N. W. 238, 14 L. R. A. 85, 28 Am. St. Rep. 370. In Pierce v. Proprietors of Swan Point Cem etery, 10 R. I. 227, 14 Am. Rep. 667, it is said there is a quasi property right. The clear legal right of exemption from wrong ful acts is in itself the property. An in jury to such right need not include an injury to physical property, or to person or to character, but is of itself sufficient to sup port an action; Koerber v. Patek, 123 Wis. 453, 102 N. W. 40, 68 L. R. A. 956. Execu tors have a right to possession of it and it is their duty to bury it ; 2 Wms. on Ex. 7th Am. ed. 165; Hapgood v. Houghton, 10 Pick. (Mass.) 154; Wynkoop v. Wynkoop, 42 Pa. 293, 82 Am. Dec. 506; but this case is re ferred to in a subsequent one in the same court as not deciding what is stated in the syllabus, which is characterized as "much too broad and as an improvident generaliza tion"; Pettigrew v. Pettigrew, 20T Pa. 313, 56 Atl. 878, 64 L. R. A. 179, 99 Am. St. Rep. 795.
The right of the widow to control the place of burial is also sustained in other cases; O'Donnell v. Slack, 123 Cal. 285, 55
Pac. 906, 43 L. R. A. 388; Buchanan v. Bu chanan, 28 Misc. Rep. 261, 59 N. Y. Supp. 810, which, while recognizing the right of the widow, held that she .could not maintain replevin for the body against one who had caused it to be properly buried ; and where the decedent did not in his lifetime live with his wife and there was no executor or ad ministrator, the sister was held entitled to control the .burial. It was also held in Louisville & N. R. Co. v. Wilson, 123 Ga. 62, 51 S. E. 24, 3 Ann. Cas. 128, that the widow has an interest in the unburied body of her deceased husband which the courts will rec ognize. The right to make testamentary di rection concerning the disposal of the body has been conferred by statute in several states; e. g. New York, Maine, Oklahoma, and Minnesota. The question of the right of disposal of the body is ably discussed by Mr. R. S. Guernsey in 10 Cent. L. J. 303, 325, and he concludes upon the authorities that in the absence of testamentary disposi tion the right and duty of burial devolves upon relatives "as follows: 1. Husband or wife. 2. Children. 3. If none—(1) Father. (2) Mother. 4. Brothers and sisters. 5. Next of kin according to the course of the com mon law, according to the law of descent of personal property ;" id. 327. Probably the rule may be fairly stated that there being no husband or wife of the deceased, the nearest of kin in order of right to adminis tration is charged with the duty of burial. And to the same effect it is said: First, the paramount right is in the surviving tiusband or widow, and if the parties were living in the normal relations of marriage, it will re quire a very strong case to justify a court in interfering with the wishes of the surviv or. Secondly, if there is no surviving hus band or wife, the right is in the next of kin in the order of their relation to the decedent, as, children of a proper age, parents, broth ers and sisters, or more distant kin, modi fied, it may be, by circumstances of special intimacy or association with the decedent.