LEGAL STATUS OF THE DEAD BODY.
Disposal and Obligations to Dispose of the Same.—There is no right of property, in the ordinary sense of the word, in a dead human body; but for the health and protection of society it is a rule of the common law, and which has been confirmed by statutes in civilized states and countries, that public duties are imposed upon public officers, and private duties upon the husband or wife and the next of kin of the deceased, to protect the body from violation and see that it is properly interred, and to protect it after it is interred. A parent is bound to provide Christian burial for a deceased child, if he has the means, but if he has not the means, though the body remains unburied so long as to become a nuisance, he is not indictable for the nuisance although he could obtain money for the burial expenses by borrowing it of the poor-law authorities of the parish, for he is not bound to incur a debt. (Reg. v. Vann, 2 Div. C. C., 325; 15 Jur., 1,090.) On the other hand it has been held in England, that every householder in whose house a dead body lies is bound by the common law, if he has the means to do so, to inter the body decently, and this principle applies where a person dies in the house of a parish or a union. (Reg. v. Stewart, 12 A. & D., 1,272.) And the expense may be paid out of the effects of the deceased. (Tugwell v. Hayman, 3 Camp., 298, and note.)
In Pierce v. The Proprietors Swan Point Cemetery, 10 R. I., 227, s. c., 14 Am. Rep., 667, the Court said: “That there is no right of property in a dead body, using this word in its ordinary sense, may be well admitted, yet the burial of the dead is a subject which interests the feelings of mankind to a much greater degree than many matters of actual property. There is a duty imposed by the universal feelings of mankind to be discharged by some one toward the dead; a duty, and we may also say a right, to protect from violation; it may, therefore, be considered as a sort of quasi property, and it would be discreditable to any system of law not to provide a remedy in such a case; ... but the person having charge of it cannot be considered as the owner of it in any sense whatever, he holds it only as a sacred trust for the benefit of all who may from family or friendship have an interest in it.” See also Wyncoop v. Wyncoop, 42 Pa. St., 293; 4 Albany Law Jour., 56; Snyder v. Snyder, 60 How. Prac., 368; Weld v. Walker, 130 Mass., 422; Guthrie v. Weaver, 1 Mo. Apps., 136; Johnson v. Marinus, 18 Abb. N. C., 72, and note.[493]
The law casts the duty of burial of the wife upon the husband, and of the husband upon the wife. In Secord v. Secord (cited in note 1 above), the Court said: “There are cogent reasons connected with public policy and the peace of families, where in the absence of testamentary disposition the possession of a corpse and the right to determine its burial should follow the administration of the estate.” Inasmuch as the husband has the first right to administer upon the estate of the wife, and the wife upon the estate of the husband, the law imposes the correlative duty of burial upon the person having such right; and so it has been held that the husband is liable for the necessary expense of the decent interment of his wife from whom he has been separated, whether the party incurring the expense is an undertaker or mere volunteer.[494]
Where the deceased leaves a will appointing executors, the executors have a right to the possession of the body, and the duty of burial is imposed upon them, but it has been doubted whether at common law a direction by will concerning the disposal of the body could be enforced, and therefore the right to make such direction has been conferred by statute in several States.[495]
And where a widow ordered a funeral of her husband, it was held that she was liable for the expense, although she was an infant at the time, the Court holding that the expense fell under the head of necessaries, for which infants’ estates are liable.[496]
If there be no husband or wife of the deceased, the nearest of kin in the order of right to administration is charged with the duty of burial.[497]
Such acts as casting a dead human body into a river without the rites of sepulture (Kanavans Case, 1 Me., 226); stealing a corpse (2 East, PC., 652) or stealing for dissection a dead body of one executed when the death sentence did not direct dissection (Rex v. Cundick, D. & R., n. p., 13), were indictable offences at common law.[498]