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Felipe v. Vega

Decided: November 15, 1989.


Gibson, J.s.c.


[239 NJSuper Page 82] By this action plaintiff seeks permission to disinter the body of her now deceased companion and to move it to a cemetery within walking distance of her home. Her application is resisted by the decedent's father who was also the administrator of the estate. The matter was presented to the court in the form of an order to show cause seeking preliminary restraints but after taking testimony from the parties on the return day, it was agreed by counsel that the court should consider that hearing as "final" for purposes of making findings of fact and reaching conclusions of law.

Findings of Fact.

In 1982, plaintiff, Ana Felipe, took up residence with Edilberto Vega and, although they never married, the two of them lived together as husband and wife until Edilberto was killed in an automobile accident on November 4, 1987. While together, the couple had a child, Sueheidi Alexis Vega who was five years old when her father died and who is now seven.

Edilberto left no will and pursuant to intestate succession, his father, Lino Vega, was appointed as administrator of Vega's estate. Vega arranged for Edilberto's burial at St. Mary's Catholic Cemetery in Mt. Holly, New Jersey, that site being close to Vega's residence and also the cemetery where Edilberto's brother was buried. Plaintiff made no objection to the burial arrangements at the time, being grief stricken, disoriented and also unsure of her right to object. Vega also took responsibility for prosecuting a wrongful death claim in behalf of plaintiff's child and was ultimately successful in obtaining a significant recovery.

Although the decedent had certain relatives in the Mt. Holly area, it would appear that their relationship with the decedent during his life was somewhat distant and their visits to the grave site, if any, have been infrequent. Plaintiff, on the other hand, visits the grave site regularly. She has placed a number of religious articles there and has treated it, more or less, as a shrine. Aside from her continuing affection for Edilberto and her desire to keep the memory of her "husband" alive, plaintiff believes that the visits to the grave are important to her daughter in that they provide reinforcement for her memory of her father and her identity with him.

Unfortunately, the cemetery in Mt. Holly is over an hour from plaintiff's home and it has become increasingly difficult to obtain transportation there. Since there is no public transportation to the cemetery and plaintiff does not drive, she has had to rely on others to take her. Because of her fear of driving, she does not intend to obtain a license, and thus, the prospect of

a solution to her transportation problem is not likely. Because of these difficulties, plaintiff has sought to have the body removed to a cemetery in Egg Harbor City within walking distance of her home. As part of that effort she has made arrangements with the priest at St. Nicholas Roman Catholic Church to perform the appropriate religious rites, assuming the court permits the move.

Finally, it should be noted that when the decedent was living with plaintiff and their child, they had a very close and loving relationship. In contrast, although Vega appears to be a loving and caring father, his contact with Edilberto during the last seven years of his life appears to have been minimal. It should also be noted that Vega's resistance to having the body moved is not based on any specific religious grounds or even because of his desire to have the grave site at a more convenient location. Rather, it is his belief that it would be unnatural to move the body and that his son should be permitted to "rest in peace."

Legal Conclusions.

Although it is widely recognized, both in this State and elsewhere, that once a body has been buried, there is a strong policy against disturbing it, the notions which support that concept are more spiritual than legal. The burial itself has historically been regarded as a religious rite and the ground where the body rests is generally regarded as consegrated. See Annotation, "Removal and Reinterment of Remains," 21 A.L.R.2d 472, 475 (1952). Despite the policy against disturbing the body of the deceased, under certain circumstances, removal will be warranted and the temporary disturbance of the remains will be justified. Glatzer v. Dinerman, 142 N.J. Eq. 88, 59 A.2d 242 (Ch.1948). Those circumstances may be both private and public and although public concerns are ...

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