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THE GREEN BAG

P- 379)' we find, "and my body I comitt to the earth from whence it was taken after my death to bee decently buried in Christian buriall by the care and discretion of my executors." And in the will of William H. Sumner of West Roxbury (1860): "Item Second. I will and direct that my body shall be interred in my Tomb, on lot number Eight Hundred and Forty-three, on Sumner Hill, Mount Warren Avenue, in the Forest Hills Cemetery, in West Roxbury." The writer ventures the assertion that no one who may read this article can examine three or four old family wills without finding evi dence of this custom. The effect of this is well stated in the English article above referred to, where it is said: "It is difficult to suppose that these directions, often accompanied with the mi nutest details as to the manner and cost of burial and by legacies dependent on their observance, should have been mere vain words of no binding force. At all events, though hundreds of wills contain such direc tions, it is strange, if they were of no bind ing force, that none out of the large number which are extravagant or absurd should ever have been called in question in a court of law. It is true that without such direc tions a duty would be implied in the execu tors to bury becomingly, and that in most cases where it is expressed the duty is laid on the executors. But the same is true of many other parts of an executor's office, and there is no reason why this duty as well as the others should not be deputed to some one who is not an executor." This right, therefore, of directing the dis position of one's body has been exercised and respected here and elsewhere for cen turies, although happily without frequent resort to the courts. And this has been appreciated by the courts, as is shown by the opinion in the leading case of Pierce v Swan Point Cemetery,1 that "the right of a person to provide by will for the disposition of his body has been generally recognized." 110 R. I. 227.

There appear to be few expressions of legal opinion which qualify or contradict the general rule and custom. One English judge, in 1882, in the case of Williams v. Williams,1 expressed an opinion that a man cannot dispose of his body by will because there is no property in a dead body. This opinion was not, however, called for by the facts of the case before him, and, as will be shown later, does not prevent the courts from carrying out the testator's wishes, even in England. This English opinion, although ably criti cised in England (see 17 Law Journal, above referred to), was quoted with approval by the California court in the case of Enos v. Snyder.2 But these opinions were based largely on an old common law maxim that "there is no property in a dead body," the origin, and even the existence, of which have been disputed.* Whatever its origin, the statement that a body is not property is neither useful nor helpful in the present discussion, and the question is merely one of phraseology. It is certain that rights in the bodies of the dead are not property in the sense of mer chandise. It is equally certain that one cannot draw from the premise that there is no such property the conclusion that there are no enforceable rights. Accordingly, in the recent Pennsylvania case of Pettigrew v. Pettigrew,4 the opinions in Williams v. Williams and Enos v. Snyder, that a man cannot control the disposition of his body, which have just been criticised as obiter, are stated to be opposed to the weight of au thority in this country. In this same Penn 1 L. R. 20 ch. D. 659. 2 131 Cal. 68. The actual decision in Enos v. Snyder turned on the local statutes. The views of the California court on the general subject have been curiously vacillating. See O'Donnell v. Slack, 123 Cal. 285 at 288. 5 See report of Hon. Samuel R. Ruggles, in re Beekman St., 4 Bradford's Surrogate Rep. at pp. 520—521 (N. Y.); tf. 10 Central Law Journal at P- 304.

4 207 Pa. St. at p. 317 (1904).