Appeal, No. 23, May T., 1953, from decree of Court of Common Pleas of York County, Aug. T., 1950, in Equity, No. 14, in case of Eleanor F. Leschey v. Robert H. Leschey et al. Decree affirmed.
Herbert B. Cohen, for appellants.
W. Bury Anstine, with him Anstine & Shadle, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
William N. Leschey died a resident of York County, Pennsylvania, leaving a widow, Eleanor F. Leschey, with whom he was living at the time of his death and five children of a former marriage as his next of kin. He was buried in a lot in the Mt. Olivet Cemetery at Hanover, York County. The widow, Eleanor F. Leschey, brought a bill in equity against decedent's daughter, Anna Leschey Dill, as executrix of the decedent's will, the other four children of the deceased and the Mt. Olivet Cemetery Association, the purpose of which was to obtain authorization by the court to remove the remains of George F. Leschey, a brother of the decedent, from the lot in which both were interred to another place in the same lot in order to provide for her future burial beside her husband, or, in the alternative, for authorization to remove the remains of her husband, William N. Leschey, to another lot in the same cemetery which would permit her future burial at his side. After dismissal of preliminary objections to the bill filed by some of the defendants, the cause proceeded to hearing, and thereafter the court entered a decree nisi granting the alternative prayer of the bill, authorizing the removal by the widow of the remains of her husband, William N. Leschey, for sepulture in another lot in the same cemetery at her cost and expense and enjoining the defendants from interfering in any way with such reinterment. Following the dismissal of exceptions thereto, the decree nisi was entered as a final decree. Defendants appeal therefrom. The defendant cemetery association remained neutral throughout the litigation and the real disputants are the widow on the one hand and the decedent's children by his first wife on the other.
The facts essential to the disposition of this controversy are: William N. Leschey died on July 29, 1945 leaving a last will and testament dated June 25, 1943 which was duly probated on August 6, 1945. Item First of his will provided, inter alia: "It is my desire that my body be buried on the Leschey lot in Mt. Olivet Cemetery at Hanover, York County, Pennsylvania, at which place my beloved mother and sister are interred. I direct that the remaining space on said burial lot be reserved for and used for the burial of my wife, Elenor F. Leschey, and my brother, George F. Leschey.". At the time of the decedent's burial his mother and sister had been buried in the lot which did not permit of more than four burials. Thus there was space for the burial of the testator and his widow at the time of his death, but three months after his interment the defendant-executrix caused the remains of the decedent's brother, George F. Leschey, who died in February of 1945 and who was buried in a cemetery in Lancaster, Pennsylvania, the place of his residence, to be removed to the Leschey lot in the Mt. Olivet Cemetery and thereby precluded another burial in this lot. This was done without the knowledge of the appellee-widow who never consented thereto. She protested when she learned of this reinterment which foreclosed her future burial in the Leschey lot. Appellee purchased another lot in the Mt. Olivet Cemetery and obtained from the Bureau of Vital Statistics of the Commonwealth permission to remove the remains of her husband or of George F. Leschey to another lot in the Mt. Olivet Cemetery. The cemetery association refused to permit such removal because of objections made by some of the defendant children. At the audit of the second and partial account of the defendant-executrix, appellee withdrew certain exceptions thereto in consideration of the promise of the appellant children that no objection would
be made by them to the removal of the remains of George F. Leschey from the burial lot. At the same time the deed to the lot was delivered to appellee in open court. The foregoing statement of facts is in accord with the chancellor's findings. They are not questioned on this appeal which is directed solely to the lower court's conclusions of law.
In this country the universal rule appears to be that upon the death of a husband or wife, the primary and paramount right to possession and custody of a body and to control the burial or disposition thereof is in the surviving spouse and not in the children or next of kin, at least in the absence of a different provision by the deceased. See 15 Am. Jur., § 9, p. 834. As to reinterment it is stated in the same volume of Am. Jur., § 21, p. 843: "... The better rule seems to be, however, that if the widow has not waived her right, she may, against the objections of the next of kin, remove her husband's body, after interment, to another place of sepulture....". The case of Pettigrew v. Pettigrew, 207 Pa. 313, 56 A. 878, is considered a leading case on the subject not only in Pennsylvania but in other jurisdictions. There a decedent died leaving a widow and one child, a daughter. About a year after his burial the daughter died and was buried in a different cemetery where the widow had purchased a lot after her husband's death. Shortly after the death and burial of the daughter, the widow had a grave dug beside the grave of the daughter for the purpose of reinterring the body of her husband therein. It appeared that there was not ...