LEGAL RIGHTS IN THE REMAINS OF THE DEAD sylvania case the court expressed a doubt as to how far the desires of the decedent should prevail against those of a surviving husband or wife, but it was a doubt by a court which fully recognizes and agrees with the general line of argument adopted in this article. Even in England, in spite of Williams v. Williams, the present practice of the ecclesi astical courts is to respect the wishes of the deceased, for, in 1892, Dr. Tristram of the Consistory Court of London, said: "Where the deceased has himself ex pressed a wish to be buried in that or in any other church yard, the invariable practice of the court is by a faculty to give effect to such wish." ' And later, in 1894, he shows that they carry out the wish of the deceased to be cremated.2 The matter may be summed up by an apt quotation from an opinion of the Su preme Court of Iowa: "It always has been and will ever continue to be the duty of courts to see to it that the expressed wishes of one as to his final resting-place shall, so far as it is possible, be carried out." * II WHAT ARE THE RELATIVE RIGHTS OF MEM BERS OF THE FAMILY OF A DEAD PER SON AND OTHERS INTERESTED, AS AMONG THEMSELVES? In the opinion of the -writer as above stated, the directions of the decedent in a will or other appropriate writing are of bind ing force and effect. This second question, therefore, arises where the deceased has ex pressed no opinion upon the whole matter, and when the family differ among them selves. In such cases there are no absolute rights. There are, however, definite rules of precedence which may, and which prac tically always do, govern the matter; but, 1 InreDinon, 1892, P. 386 at p. 391. 3 In re Kerr, 1894, P. 284 at p. 293. 8 Thompson v. Deeds, 93 la., 228. See also O'Donnell v. Slack, 123 Cal. 285.
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in the last resort, the courts may give weight to special circumstances and estab lish a rule of fitness and decency in the par ticular case which does not precisely con form to these rules of precedence. In Massachusetts the court decided in the case of Burney v. Children's Hospital,1 that the father of a deceased minor child may maintain an action for damages for muti lating the child's body by an unauthorized autopsy. The grounds of the decision were that in the Massachusetts decisions "a right of possession" (of a dead body) " is recog nized, which is vested" (primarily) "in the husband or wife or next of kin, and not in the executors." The court then held that the father, as the natural guardian of the child, was entitled to the possession of its body for burial in the condition in which it was at time of death, and, therefore, was entitled to sue for mutilation of it. From the opinion in this and other cases it may be laid down as the general rule of law in this country that, in the absence of special circumstances of unfitness and in the absence of expressed wishes of the de ceased : 1. The husband has the right to control the disposition of his wife's body.2 2. The wife has the same right as to her husband's body.1 3. If there is no surviving husband or wife, the living children have the right, as they naturally come next.4 4. Next would come probably the living grandchildren. 5. If there were no children or other de scendants, then first the father;8 second, the mother, as she is the natural guardian after the father. (A court might regard the 1169 Mass. 57. 2 Smyley v. Reese, 53 Ala. 89; Weld v. Walker, 130 Mass. 422.
- Hackett v. Hackett, 18 R. I. 155; Larson v.
Chase, 47 Minn. 307. 4 See Lowry v. Plitt, 16 Am. Law Reg. N. S. i S5 (Pa.).
- Burney v. Childrens' Hospital supra. See
also The Queen v. Price infra.
