LEGAL RIGHTS IN THE REMAINS OF THE DEAD cern in the disposal of the body except to see that it is decently done. The rights of persons in such matters as are here consid ered are, therefore, essentially private, and rest on the law's respect for private feelings, and the law, so stated, does not require technical and misleading analogies to sup port it.1 • It is suggested in the Rhode Island case of Pierce v. Swan Point Cemetery, already referred to, that all the rights in a dead body are subject to regulation by a court of equity similar to the control which a court exercises as to the custody of children, the ground being that the custody of a dead body is a "trust" for friends and others feeling a natural interest; and this sugges tion was repeated by the court in Hackett v. Hackett,2 with the additional remark, that "in no case is it" (the right to control) "an absolute right." It is to be regretted that the word "trust" has been introduced into the discussion, for the word has such technical significance in the law of property that it is likely to create confusion. It is clear that all that is meant by the word "trust," as used by the Rhode Island court and other . courts that have used it, is that after the burial of a body the courts will protect the repose of the dead, and will settle disputes by some commonsense rule of respect for the feelings of those interested; and before burial, if disputes arise between next of kin of the same de gree who have equal rights, or even between relatives of different degrees under special circumstances, the courts will regulate the matter as well as they can on the ground that rights in this class of cases are not ab solute, like property rights, but are subject, not only to the rules of public health and decency, but also, to some extent, to con siderations of fitness and respect. For in stance, it is not uncommon for persons de siring cremation to direct that their ashes be given to the winds. The jurisdiction 1 See O'Donnell v. Slack, 123 Cal. 285 at p. 289. 2 18 R. I., 159.
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over such a case does not rest on any theory of a "trust," as the word is used in the law of property. It exists, and has always ex isted in this country, because common sense and decency demand it and it is limited by the ordinary limitations of common sense and decency. There is no reason why a court 'should thwart such wishes. So far this discussion of the rights of rela tives has been confined to the law of this country. In England there has been a curi ous conflict of law between the ecclesiastical and the civil courts as to the right to cremate a body in the absence of the express wish of the deceased. It has been pointed out by Hon. Samuel R. Ruggles, in a well-known report,1 that the English ecclesiastical courts exercise over the burial of the dead "a legal, secular authority which they had gradually abstracted from the ancient civil courts to which it originally belonged," and that the separate existence and authority of the English ecclesiastical courts, there fore, has helped to prevent the civil courts from developing the law of individual rights in the matter. Notwithstanding the ecclesiastical juris diction, however, the subject occasionally comes into the English civil courts and in 1884, in Queen v. Price,2 a man was indicted for cremating, under somewhat irreverent conditions, the dead body of his minor child. Sir James Stephen decided, after a careful analysis of the authorities, that, at com mon law, it was the right and duty of the father to dispose of the body "by burying or in any other manner not in itself illegal," and that he committed no offense by cre mating it, if he did not do it in such a way as to create a nuisance, or to avoid an in quest. On the other hand, Dr. Tristram in 1892,' and again in 1894,' stated the opinion of 1 In re Beekman Street, 4 Bradf. Surr. at pp. 520-521 supra. 2 12 Q. B. D. 247. 3 In re Dixon, 1892, P. 386 at p. 393. 4 In re Kerr, 1894, P. 284 at p. 293.
