Legal Rights and Obligations To A Corpse
Legal Rights and Obligations To A Corpse
9-1-1943
Recommended Citation
Peter F. Nemeth, Legal Rights and Obligations to a Corpse, 19 Notre Dame L. Rev. 69 (1943).
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NOTES
In modern times this duty is present if for no other reason than the
protection of the living. However, the duty to bury is imposed by law.1
If there is such a duty to bury the dead that duty must be placed
upon someone. We must, therefore, assume, that where there is a duty
to bury the dead there also must be a right to take possession of the
body for the execution of the duty and that any interference with this
right might be redressed by an action at law.
1 Burns Statutes 1933 Sec. 35-106, Sec. 63-602, Sec. 35-115, Sec. 2211 Penal Law
(N. Y.).
2 Orr v. Dayton & Muncie Traction Co. 1911, 178 Ind. 40. Renihan et al. v.
Wright et al. 1890, 125 Ind. 536.
3 Jefferson Co. Burial Society v. Scott 1928. 218 Ala. 354 118 So. 644.
4 In re Thomas' Estate 1899, 56, Pac. 906. Enos v. Synder 1900, Contra, 63 Pac.
170.
5 Driscoll v. Nichols 71 Mass. 488-4f1, 1855.
NOTRE DAME LAWYER
common law holds the husband liable. In Indiana it was held that
the funeral director may proceed against the wife's estate, although the
husband is ultimately liable.24 In the case of an infant the father is
liable if he is financially able.25 Where the deceased is an infant
survived by his mother only, the infant's estate, if any, would be liable,26
if sufficient. If not, then the mother is responsible.27 Where the father
is insolvent, the infant's estate is liable for its funeral expense; 2 8 and,
where there was no other source of payment, the infant's estate has
paid for the father's funeral expenses.29 If the deceased's estate be
insolvent, it is held that the right and duty of payment of funeral
charges is paramount to payment of the deceased's debts.30
When the deceased dies intestate the duty created by statute to bury
the deceased, also provides, that the burial be at public expense when
3
there are no relatives or friends willing to assume the obligation. 2
Now, that we have established the nature of the interest in the
dead human body and found that those who are his legitimate heirs
inherit duties and their accompanying legal rights, insofar as burial is
concerned, we are faced with the problem that the deceased may have
affected these interests and rights by his action prior to death, as to the
disposition of his remains.
It is interesting to note that the funeral director may be delegated
by the deceased prior to death, to assume the protection of the deceased's
rights ordinarily vested in his survivors or his executors. This contract
is knoNn to the funeral director as a "pre-arranged funeral" by the
terms of which the deceased's body is disposed of according to the laws
of public health and sanitation; with special emphasis to the deceased's
particular wishes in regard to the manner and method of disposal of his
mortal remains. This right of the deceased to control the disposal of
his own bodily remains after death, seems to be a property right;