Plaintiff, Susan Devine Camilli, one of nine children of the decedent, Bonaventura E. Devine, brings this action to disinter the remains of her mother who died on March 13, 1985 in New York City. The decedent was buried at the Immaculate Conception Cemetery located in Upper Montclair in Essex County.
Decedent executed a will on April 21, 1982, the probate of which is being contested by plaintiff in a proceeding presently pending in the Surrogate's Court of New York County. The basic issue pending in the Surrogate's Court is not the decedent's
cause of death, but whether the dementia and brain dysfunction suffered by decedent at the time of her death existed three years earlier, in 1982, to a degree sufficient to legally impair her testamentary capacity. Plaintiff, here, seeks to temporarily exhume the remains of her mother in order for a pathological examination to be made of her brain tissue. It is hoped that the examination will produce evidence of the decedent's lack of testamentary capacity at the time she executed her will. Plaintiff's contention is that by pathological examination of the decedent's brain tissue the presence of infarcts, hemorrhages and Alzheimer's disease will be discernable to an extent sufficient to prove that dementia was present at the time decedent executed her will in 1982.
This action was heard summarily due to the limited factual issues, the impending trial in the Surrogate's Court and the length of time the deceased has already been buried, all of which warranted an expeditious hearing. R. 4:67.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Historically, the common law did not recognize private property rights in the buried remains of a decedent. Jurisdiction over the dead was exclusively exercised by the ecclesiastical courts in England. Such jurisdiction later passed to the courts of equity so that today it is well established that equity courts have custody over dead bodies. Petition of Sheffield Farms Co., 22 N.J. 548, 126 A.2d 886 (1956).
The sanctity of the grave is conscientiously respected by the courts. By tradition therefore, the law does not favor removal or disturbance of a decedent's remains based upon a private right. Such action may be allowed however, to satisfy a paramount public right or upon an affirmative showing of good cause and urgent necessity. Perth Amboy Gas Light Company v. Kilek, 102 N.J. Eq. 588, 590, 141 A. 745 (E. & A.1928); Fidelity Union Trust Co. v. Heller, 16 N.J. Super. 285, 290, 84