Koppikus v. Fitzgerald

California Court of Appeal May 31, 1905 No. No. 3. Sac. No. 1366.Published

Before: Buckles

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Holding. The court held that a testatrix's direction to erect a monument over her grave is a valid testamentary expense, and that the subsequent removal and cremation of her remains by her husband does not defeat the executor's duty to erect the monument at the established grave site. However, the court held that the provision for the long-term care of the burial lot was too indefinite to be enforceable.

Issues

Whether a testamentary direction to erect a monument over a grave is a valid funeral expense when the remains were later removed and cremated.
Whether a testamentary provision for the long-term care of a burial lot is sufficiently definite to be enforceable.

Disposition. modified and affirmed

Quotations verified verbatim against the opinion

“the subsequent removal of her body from the said grave and the cremation of the same do not destroy the character of the original resting-place of her mortal remains as her grave”

“the one hundred dollars for care of lot for twenty-five years, we think the court erred in its decree in that respect. The provision in the will is entirely too indefinite ever to be enforced.”

Synopsis

APPEAL from an order and judgment of the Superior Court of El Dorado County directing a sale of real estate. M. P. Bennett, Judge.

The facts are stated in the opinion of the court

BUCKLES, J.

This is an appeal from an order and judgment directing a sale of real estate.

Emma Koppikus died testate March 31, 1903, leaving her surviving her husband, Henry G. Koppikus, her sole heir.

[85]

The reasons for the sale as set up in the petition, and found by the court, are to pay commissions of executor, $280; attorneys’ fee, $250; for erecting a monument over the grave of testatrix, etc., $1,000; and for paying $100 to keep the grave, etc., in repair, making a total of $1,630; and that the personal property is not sufficient to pay these amounts.

The court below made an order directing tkB sale to be made, and this is complained of and objected to on the following grounds: 1. That the direction in the will as to monument over the grave of testatrix is an attempt on the part of testatrix to dispose of her dead body by will, and is not a proper funeral expense; and 2. That there is no grave of testatrix wherein the remains of the said Emma Koppikus are interred, and that the remains were, by her said husband, caused to be cremated, and the ashes are not in the cemetery.

The court made findings, among which are the following, bearing upon the matters tried. The will is set out in full in finding III, and the part relating to the monument is as follows:—

“I desire that my body be buried from the Roman Catholic church of Georgetown and be laid to rest in the Georgetown cemetery, and that a monument of Scotch granite be erected over my grave and the lot to be surrounded with a granite curbing, the said monument and curbing to cost one thousand dollars. And I desire that the said lot be cared for -and kept in order for at least twenty years after my death.”

“finding IV.

“That in accordance with the desire of testatrix, expressed in the said will, she was buried on the - day of April, 1903, in the said Georgetown cemetery; that her burial in the said cemetery was with the full knowledge and consent of her husband, Henry G. Koppikus, who was present at her burial and grave and made no objection to her burial in said grave in the said Georgetown cemetery. . . . That the body of Mrs. Koppikus was buried as aforesaid in a private lot ten feet square, selected and paid for to the cemetery association by the executor of the said estate as such with the funds of the said estate.

Koppikus v. Fitzgerald

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Synopsis

BUCKLES, J.

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