Enos v. Snyder

McFARLAND, J.

John S. Enos died in Sonoma county .on March 30, 1898. The plaintiff Susie T. Enos is his surviving wife, and the plaintiff Gertrude Willis is his daughter; For several years next before his death the deceased had not lived Avith his Avife, but during that time lived at the residence of the defendant Rachael Jane Snyder, where he died. He left a will which contained a direction that the manner, time, and place of his burial should be “according to the wishes and directions of Mrs. R. J. Snyder,” the said defendant. After his death the plaintiffs herein made demand of defendant Snyder for possession of his body for the purpose of burying the same,

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and the demand was refused. Thereupon this action was commenced against Mrs. Snyder for a judgment declaring that plaintiffs are entitled to the possession of the dead body of the deceased for the purpose of burial, enjoining defendant from proceeding with the burial of said body and directing her to give to plaintiffs the possession thereof.

Defendant Snyder answered, setting up the clause in the will above referred to, and also verbal statements to the same effect made by the deceased before his death. Afterward E. S. Lippitt, the executor named in the will, was, on his own application, made a party defendant, and he filed an answer averring substantially the things set up in the answer of defendant Snyder. Demurrers to both answers were sustained, and judgment was entered for plaintiffs substantially as prayed for in the complaint. From this judgment defendants appeal. It is admitted that the record presents the sole question involved in the case, namely, Dnder the law of this state, did the respondents, as next of Mn, have the right to the possession of the body of the deceased for the purpose of burying it, as against the appellants who claim that right under the will?

The general English and American authorities on the subject are not very satisfactory—at least, as to a contest like the one here involved between the next of kin and persons claiming under a will. It is quite well established, however, by those authorities that, in the absence of statutory provisions, there is no property in a dead body, that it is not part of the estate of the deceased person, and that a man cannot by will dispose of that which after his death will be his corpse. There are some expressions in some of the authorities cited by appellants to the effect that the right of burial is in the next of kin, “in the absence of any testamentary disposition”; but they were not cases in which the right of testamentary disposition was involved. The case which is most directly in point here is