Paul E. Heller executed his last will and testament on February 12, 1935. In the second article thereof, he expressed the desire that his body rest in a mausoleum in Fairmount Cemetery in the City of Newark, directed his executors to erect the mausoleum at a cost of $25,000 upon a plot in the cemetery, and provided for the interment therein of both deceased and surviving members of his family. Elsewhere in the will he set up a trust fund for the care and maintenance of the plot and mausoleum. Seven years later, on February 16, 1942, he bought a plot in another cemetery, Mount Pleasant Cemetery, in Newark, and secured from that cemetery association its approval to erect a mausoleum thereon. From correspondence in his files it appears that from 1942 to 1944 he negotiated for the erection of the mausoleum and procured elaborate sketches, blueprints and estimates, but material shortages during the war years prevented him from completing his project. He died on February 26, 1948, without having changed his will. His body has been placed in the receiving vault of Fairmount Cemetery, awaiting determination of the place of final interment.
The plaintiffs, executors and trustees under the will filed this proceeding for instructions as to (1) the burial of the testator, (2) the erection of a mausoleum, (3) the removal of the bodies of deceased members of the Heller family, and (4) the trust for the maintenance of the cemetery plot.
The facts are undisputed and have been stipulated. The testator was unmarried. His closest surviving next-of-kin are nephews and nieces. The bodies of nine members of his family, including his parents and brothers, are buried in the Heller family plot in Fairmount Cemetery, which is too small to accommodate a mausoleum. Another plot suitable for a mausoleum could be procured in Fairmount Cemetery, but
the next-of-kin of the deceased persons all object to moving the bodies now interred in the family plot. The plot in Mount Pleasant Cemetery acquired by the decedent is adequate for a mausoleum, but since the bodies now interred in Fairmount Cemetery would not be moved and the surviving members of his family do not wish to be interred in the mausoleum, it would contain only the remains of the decedent. All of the testator's next-of-kin, with but one exception, desire that he be interred, and, if erected, the mausoleum be in Mount Pleasant Cemetery. The single objector urges that if a mausoleum is erected, it should be in Fairmount Cemetery.
Paragraph Two of the will reads as follows:
"SECOND: I desire that my body shall rest in a mausoleum in Fairmount Cemetery in the City of Newark, New Jersey. In the event I shall die without having erected a mausoleum in said cemetery, I direct my executor to build a mausoleum at a cost of approximately Twenty Five Thousand ($25,000.00) Dollars upon my plot, if I have acquired one in my lifetime for that purpose, or if I shall die without having acquired one, then upon the present family plot, or if that be impossible or undesirable, then upon such desirable plot in the cemetery as my executors may choose. The cost of the plot, if one is to be acquired, is to be borne by my estate out of the principal thereof in addition to the sum which I have appointed to be spent for the erection of a mausoleum. I direct my executors to cause my body to be interred therein and, pending the erection thereof, my body shall be cared for in the receiving vault of the cemetery. I also direct that my executors shall cause to be interred therein the bodies of my father, my mother and of all the members of my family, who are named in this will as beneficiaries, desiring interment in it. My father and mother having predeceased me and being now buried in the cemetery, the expense of removing their bodies to the mausoleum shall be borne by my estate."
This proceeding is not for the construction of decedent's will, for the will itself is unambiguous. Generally, the facts and circumstances considered in the construction of a will are those which existed when the will was made and not subsequent events. 2 Page on Wills (Lifetime ed.), sec. 920, p. 816. Here, the plaintiffs seek the instruction of the court whether to comply with the clear and specific provisions of
the will or whether to depart from strict compliance. The issues call for discussion of the following legal questions: What is the nature of the right of a decedent respecting the disposition of his body after death? What is the duty of the executor in that respect?
It is settled that there is no property right in a dead body in a strict sense or ordinary use of the term. Toppin v. Moriarty , 59 N.J. Eq. 115 (Ch. 1899); DeFestetics v. deFestetics , 79 N.J. Eq. 488 (Ch. 1911); Glatzer v. Dinerman , 142 N.J. Eq. 88 (Ch. 1948). It is not part of the estate of the decedent. Some states, like New York, have statutory provisions which specifically confer upon a person the right to direct the manner in which his body shall be disposed of. Penal Law, N.Y., sec. 2210. In re Johnson's Estate , 7 N.Y.S. 2 d 81, 169 Misc. 215 (Surr. 1938); In re Eichner's Estate , 18 N.Y.S. 2 d 573, 173 Misc. 644 (Surr. 1940). This right is merely a personal right and is not regarded as testamentary in character. The general rule is that although not essentially testamentary, and legal compulsion may not attach to them, the wishes or directions of a decedent as to his interment are entitled to respectful consideration and have been allowed great weight. "It always has been, and ever will continue to be, the duty of courts to see to it that the expressed wish of one, as to his final resting place, shall, so far as it is possible, be carried out." Thompson v. Deeds , 93 Iowa 228, 61 N.W. 842, 35 L.R.A. 56 (Sup. 1895); Pettigrew v. Pettigrew , 207 Pa. 313, 56 A. 878, 64 L.R.A. 179 (Sup. 1904); Wilson v. Read , 74 N.H. 322, 68 A. 37, 16 L.R.A., N.S. 332 (Sup. 1907); Wood v. E. R. Butterworth & Sons , 65 Wash. 344, 118 Pac. 212 (Sup. 1911); Yome v. Gorman , 242 N.Y. 395, 152 N.E. 126, 47 A.L.R. 1165 (Ct. App. 1926); Burnett v. Surratt , 67 S.W. 2 d 1041 (Tex. App. 1934); Jackson, Law of Cadavers (1937), page 49 et seq.; 25 C.J.S., Dead Bodies, sec. 3, p. 1018.
There has not come to my attention any reported case in this State dealing with the effect of a specific direction in a will regarding ...