456. Negroes, Indians.—The fact that a man is a negro, Indian, or other racial human being, is not good ground to prevent his burial in a cemetery.[803]
457. Will, Body, Custody.—Where no disposition of a body has been made by will, the surviving husband, or wife, or next of kin, has the right to the body for the purpose of burial. But the right of the surviving wife or husband, if they were living together at the time of the death of deceased, is paramount to that of the next of kin.[804] A right to the custody of the body of a deceased relative and to decide upon the final place of burial where the deceased is unmarried, [pg 238] is in his next of kin, and this right will be protected by the courts.[805]
458. Non-Residence, Burial.—Non-residence does not divest a person of the right to burial with his relatives.[806]
459. State, Vacate, Equity, Rule.—The State may require the removal of the bodies and vacate a cemetery without compensation to lot owners in some extraordinary cases of eminent domain or as a health measure.[807] Courts of equity exercise some discretion in cases that do not fall within this rule.[808] But the superintendent of a cemetery has no right to remove a child without the consent of the father who owns the lot.[809]
460. Consent, Bishop, Removal.—With the consent of deceased's husband before the funeral, the father of deceased paid for the lot in which his daughter wished to be buried with her parents. Her mother being dissatisfied with the location, the lot was [pg 239] subsequently exchanged for another in the same cemetery; but after preliminary arrangements had been made, the son-in-law applied to a court of equity for a writ restraining the father and the bishop from removing the body. The bishop answered that he was willing to conform to any order of the court. The court held that by acceding to his wife's request and allowing her father to bury her in the first instance, and by standing mute while the arrangements for the removal of the body were being made, the husband had no right thereafter to prevent the removal of his wife's body.[810]
461. Court, Remove, Consent.—In a proper case a court may grant a decree to remove the body of a relative from one cemetery to another.[811] Otherwise no one has the right to exhume or remove a body without the consent of those having charge of the cemetery and of those having the right of burial, as consort or the next of kin. In some States the offense is a felony.[812] In Nebraska, at least, those who have the legal right to bury a relative may remove his body [pg 240] from one Catholic cemetery to another without the consent of the bishop.[813]
462. Crime, Fraud, Exhume, Autopsy.—In an action on an insurance policy where there is evidence of fraud, as death by poison, a court may order a body exhumed for examination, although the person having the right to control the burial of the body is not a party to the suit.[814] Public officials have the right to disinter a body to ascertain whether a crime has been committed.[815] But without a coroner's inquest or consent of the surviving consort or next of kin, a doctor has no right to perform an autopsy.[816]
463. Tort, Corpse.—The general rule is that an action of tort may be maintained by the widow or next of kin for the mutilation of a corpse or even for negligently exposing it to the elements.[817] In a few cases the right has been denied.[818]
464. Custodian, Burial, Mutilation.—In the absence of a widow, a son is the lawful [pg 241] custodian of the body of his deceased father for preservation, representation, and burial, and may maintain an action for unlawful mutilation thereof. The sense of outrage and mental suffering resulting directly from the wilful mutilation of the body of a parent, is a proper independent element of compensatory damages.[819]
465. Property in a Corpse, Mummy, Executors.—The question of property in a corpse has been generally denied. However, in case of a mummy which has become an object of curiosity, the case may be different. Where a testator ordered his body burned and the executor presented a bill for £321 for doing so, the court disallowed it on the ground that when a man is dead his next of kin or executors have the right to dispose of his body; but that as it is not property, a man has no right to bequeath it for a particular purpose.[820] Also, where a man was in jail and died during his imprisonment and the jailer refused to give up the body until the debt was paid, the court held that there was no property in the corpse, and therefore there could be no lien upon it and he must surrender it.[821]