The plaintiff herein seeks instructions concerning the last will and testament of Rose M. Gallagher, deceased, and a judgment against defendant Cassidy for an alleged debt due the estate of Rose M. Gallagher from the defendant Cassidy.
The facts and conclusions in connection herewith are as follows: On August 11, 1953 Rose M. Gallagher, then 89 years of age, died a resident of Atlantic County, leaving a last will and testament, which was duly admitted to probate by the surrogate of said county. The said will provided, inter alia , as follows:
"Fifth: I give and bequeath to the Holy Cross Cemetery Company the sum of Five Hundred Dollars ($500.00) free of tax, for the perpetual maintenance and care of my grave."
The deceased did not own a burial plot in the designated cemetery at the time of her death.
For some time prior to her death Rose M. Gallagher, a member of the Roman Catholic Church, had resided with the defendant Cassidy, who took charge of her funeral before the discovery of her will. Interment was made in the Laurel Memorial Park Cemetery in Atlantic County, New Jersey, a non-sectarian cemetery maintaining a perpetual care fund, in the presence of priests of the Roman Catholic Church, who blessed the grave at the time of burial. Holy Cross Cemetery is a cemetery located in Philadelphia, Pennsylvania, consecrated for the burial of members of the Roman Catholic faith alone. At the time of the burial of Rose M. Gallagher there was no similarly consecrated cemetery in Atlantic County. Burials had been made of Roman Catholics prior to and at the time of the burial of this decedent at Laurel Memorial Park in a similar manner, which burials were permitted by the ecclesiastical law of the Roman Catholic Church.
The total estate, absent the claim against the defendant Cassidy, hereafter referred to, amounted to approximately $5,000. The plaintiff here desires instructions as to whether the body of the deceased should be reburied in the Holy Cross Cemetery. The cost of disinterment, acquisition of a burial lot, and reburial would amount to approximately $650.
It is to be noted that the original burial did not violate any ecclesiastical law of the Roman Catholic Church. The ground was considered hallowed and consecrated ground at the time of the burial because of the blessing of the priest in attendance. Although it must be recognized that the wishes or directions of a deceased as to his interment are entitled to respectful consideration and are allowed great weight, such directions, even though contained in a will, are not considered testamentary in nature, since there is no property right in a dead body, in the ordinary sense. After interment, a body is in the custody of the law and removal is subject to the jurisdiction of this court. Such power, however, should not be exercised unless it be clearly shown that good cause and urgent necessity for such action exists
In the light of the fact that the deceased is already buried in ground which, according to the ecclesiastical law and doctrinaire of her church, is consecrated and hallowed, and the cost incident to the removal to another cemetery would be excessive when compared with the size of the estate, there appears to be no good cause or urgent necessity to direct such removal. The executor is therefore directed not to so remove.
The bequest of $500 to Holy Cross Cemetery was made upon the contemplation of interment in that cemetery, and for the perpetual maintenance and care of the deceased's grave therein. The bequest must therefore fail ...