Page:The Green Bag (1889–1914), Volume 17.pdf/369

 THE GREEN BAG father and mother as having equal rights, •especially if the deceased child was of age.) 6. After them, the living brothers and •sisters, and so on through the living next •of kin.1 7. That the rights of these persons in terested will be protected by a court of equity.* 8. That the estate is liable for the rea sonable expenses of disposing of the 'body.3 9. That, in the absence of directions from those entitled to give them, the executor or administrator has the right and duty of providing decent burial.1 It has been argued, even by judges whose •conclusions agree substantially with those lierein expressed, that all of these rights spring from legal duties; for instance, that .a husband has the right to his wife's body because he has a right to administer Tier estate and because the office of adminis trator carries the duty to bury and, there fore, the right to the body.5 Such reasoning seems fallacious and unnecessarily complex. It overlooks the distinction between the various rights. Some are public rights con nected with public duties, such as the old •common law duty of a householder to bury a person dying under his roof, if there was no one else to do it." The dutv and 1 See Lowry v. Plitt, supra; cf. Bogert v. City of Indianapolis, 13 Ind. 134 and 10 Central Law Journal at p. 327. 3 Weld v. Walker, supra. 3 Constantinides v. Walsh, 146 Mass. 281; Perley, "Mortuary Law," 78 and note. 4 a Blackstone's Com. 508; Pettigrew v. Pettigrew, supra. 8 See Pettigrew v. Pettigrew, supra. 8 See Reg. v. Stewart, 12 Ad. and E. at pp. 778, 779. This positive duty of the householder seems to rest on the negative legal duty to refrain from keeping a nuisance on his premises or from doing other offensive things, see Lord Denman's language in the case referred to at p. 778. "It should seem that the individual under whose roof a poor person dies is bound to carry the body decently covered to the place of burial; he cannot keep him unburied, nor do anything which prevents Christian burial; he cannot there fore cast him out, so as to expose the body to

corresponding right of the executor or ad ministrator to bury may also fairly be con sidered to be public in their nature, because some one must do it. Other rights, how ever, are not of the same class. Some who have rights may under some circumstances have duties in the same matter, as in the case of the husband or wife or father or mother where there is no estate of the de ceased.1 But it does not follow and is not the fact that such duties and rights are al ways correlative. There is no public conviolation or to offend the feelings or endanger the health of the living, and for the same reason he cannot carry him uncovered to the grave." Cf. Reg. v. Vann, 2 Den. C. C. 325. 1 See Constantinides v. Walsh, 146 Mass. 281, Perley, "Mortuary Law," pp. 36-39. On page 38 of Mr. Perley's book it is said that "when a person upon whom the duty of burial rests is incapable of acting,. . . the duty falls upon the next one having it. ..." The meaning of this remark is not quite clear, but, if it means that there is a legal duty for the performance of which (in the absence of statute) the next of kin, who were not bound to support the deceased, can be held re sponsible, the statement may well be doubted. The case of Jenkins v. Tucker, I. H. Bl. go, cited by Mr. Perley, does not support such a state ment, and there seems to be no reason why a rela tive, who is not bound to support the deceased before death, should be bound to bury him. Of course, if the deceased died in the house of the relative and no one else would bury him, the rela tive would have to do it; but that duty is im posed on the householder as such (see Reg. v. Stewart, supra) and not on the ground of rela tionship, and the fact that the relative is given a right to bury is no reason why the duty should be imposed if he does not wish to exercise the right. It is said that this duty was imposed under "the civil law of Ancient Rome," see Pierce v. Swan Point Cemetery, 10 R. I. 227; but that is hardly sufficient authority under our modern conditions and laws of independence. In the case of a husband and father the situa tion is different. His duty both to support and to bury is a duty not only to his wife and child, but to the public (see Reg. v. Vann, 2 Den. C. C. 325), whereas his right to control, as against others, is founded on private feelings. It seems probable from Mr. Perley's text on p. 78, that this note is merely explanatory and not inconsistent with his views.