O'Donnell v. Slack

California Supreme Court Jan 13, 1899 No. S. F. No. 1120Published

Before: Henshaw

AI Brief

AI-generated · verify before citing

Holding. The court in probate lacks jurisdiction to award the custody of a deceased person's body or to direct its disposition when the will is silent, as the right to bury and control the remains belongs exclusively to the next of kin.

Issues

Whether a probate court has jurisdiction to award the custody of a deceased person's body to a stranger in blood to the exclusion of the next of kin.
Whether a probate court has jurisdiction to direct the specific disposition of a body when the decedent's will contains no such provision.

Disposition. annulled

Quotations verified verbatim against the opinion

“the court exceeded its jurisdiction in attempting to award the custody of the body of the deceased to one not of kin, to the exclusion of the next of kin; indeed, that it exceeded its jurisdiction in attempting to make any award of the custody”

“the right to bury a corpse and to preserve its remains is a legal right which the courts of law will recognize and protect.”

“such right, in the absence of any testamentary disposition, belongs exclusively to the next of kin.”

Synopsis

Estates of Deceased Persons—Disposition of Body of Decedent— Jurisdiction of Court.—If a decedent makes a testamentary dis- _ position of his body, the court in probate and his personal representative have jurisdiction to execute the will in that regard; but if the will is silent the court has no power to dispose of the remains, or to fix the place of the interment, or to commit the interment to a stranger; but the right to dispose of the body for interment in such ease belongs to the widow, or next of kin of the decedent.

Id.—Foreign Interment—Bights oe Widow—Order Committing Interment to Stranger—Certiorari.—After the court had made an order directing the payment to the widow of a decedent by his executors of a specific sum to defray the expense of removal of the body and interment thereof in Ireland by her, in accordance with the last wish verbally expressed by the decedent, and had settled the final account of the executor showing such payment to the widow, it had no jurisdiction, without the consent of the widow, to change the order, and to commit the interment of the body in Ireland to a stranger not of kin to the deceased; and an order so made must be annulled upon writ of review.

Id.—Allowance oe Expenses.—The proper expenses of the disposition of the body of the deceased by the next of kin may be allowed by the court as a charge against the estate; but the court cannot for that reason interfere with the duty and right of burial by the next of kin.

HENSHAW, J. This is an application for a writ of review. Roger O’Donnell, husband of petitioner, died testate. His will was admitted to probate in the city and county of San Francisco. It contained no provision nor direction for the disposition of his body. During the course of administration the widow filed a petition setting forth that the deceased had expressed a last wish that his remains should be buried beside those of his father and mother at Finn Town, Ireland, and praying for an order enabling her to fulfill this request. The court made its order authorizing and directing the executor “to pay over to Annie O’Donnell, the widow of the deceased, the sum of seven hundred dollars out of the funds of the estate, to be [287]used and expended by Annie O’Donnell in defraying the expense of removing from the city and county of San Francisco to Finn Town, Ireland, and there suitably' interring, the body of Roger O’Donnell, deceased.” The final account subsequently filed by the executor showed payment to Annie O’Donnell of the seven hundred dollars for the purposes named. The account was allowed and settled, and a decree of distribution was entered; but on the same day the court made the following order: “Good cause appearing therefor, it is hereby ordered that the fund of seven hundred dollars heretofore, by order herein dated February 1, 1897, allowed out of said estate for the purpose of defraying the expense of the removal of the body of deceased to Ireland, and there interring the same, and which fund, less the sum of fifty-five dollars already expended in preliminary preparations for the removal of said body, is now in the possession of John A. Percy, Esq., be retained by said John A. Percy, Esq., in his possession subject to the further order of the court.” On April 26th the court made its decree finally discharging the executor. On August 13th John A. Percy, who had been the attorney for Annie O’Donnell, filed a petition stating that he still retained in his possession the funds set apart for the transportation and burial of the body of the deceased, and prayed an order appointing some suitable person to execute the mandate of the court. The court fixed a date for the hearing of this petition, and ordered service of notice upon all interested parties. The widow appeared, and by verified pleading set up that she had been sick, and therefore unable to take the body to Ireland; that she had recovered and was willing and would be ready within three weeks to remove the body, and asked that Percy be directed to pay to her the money in his hands. She objected to the payment of the money to anyone else, objected to any other person being empowered to remove the body, denied the jurisdiction of the court to modify its original order, and “respectfully informs the court that she does not and will not consent to the removal of the body of her deceased husband to Ireland or elsewhere by any other person than petitioner herself.” After the hearing the court made its order commanding that the body be immediately removed to Finn Town, Ireland, and giving Matthew Martin authority and

O'Donnell v. Slack

AI Brief

Synopsis

More from California Supreme Court

Related research

AI Brief