DISPOSAL OF BODY

Press, Volume LXXXI, Issue 24581, 1 June 1945, Page 7

DISPOSAL OF BODY

DISPUTE HEARD IN SUPREME COURT duties of executor "The whole proceeding Is an unfortunate one, and It t» to be'hoped that «U concerned may find some way out to avoid further Indecencies in the matter, said Mr Justice Northcroft in the Supreme Court yesterday, in giving judgment for plaintiff in a case in which John Murdoch, a retired storekeeper, of Ross, appealed for an injunction restraining the defendants, Margaret Ann Murdoch, widow, and John Rbind,, undertaker, from burying the body of James Alexander Murdoch at any other place than in the family burial plot in the Hokitika cemetery. Mr C. S. Thomas appeared for the plaintiff, and Mr K. M. Gresson for defendants. . . The plaintiff’s statement set out that James Alexander Murdoch, a retired solicitor, died at Hokitika on May 29. 1945, at the age of 76 years. He had left a will dated September 8, 1944, and plaintiff, a brother, was the sole executor named in his will. The executor had given instruction to his solicitors to apply for probate of the will. During his lifetime, James Alexander Murdocji had discussed- with plaintiff where he was to be buried, and had said he wished to be buried in the family burial plot in the Hokitika cemetery where his father and, mother were buried, and where he had already arranged for a sister, Letitia, to be buried. The plaintiff had informed Margaret Murdoch, the widow, of his wishes,' and that the burial would take place at the Hokitika cemetery on Thursday, May 31. He had made arrangements with H. Thompson, Ltd., undertakers, Hokitika, to conduct the burial and to advertise particulars. The body was placed with the undertakers at Hokitika awaiting burial. The widow cancelled these arrangements, and arranged for the body to be taken to Christchurch for cremation. The plaintiff informed the widow that he could not agree to what she had arranged and notified ■ the Cremation Society to that effect. In the circumstances the Cremation Society had refused to cremate the body. The widow was Informed of this refusal, but she brought the body to Christchurch for burial by John Rhlnd, undertakers. The burial had not taken place. Duties of Executor Mr Thomas, for the plaintiff, said that James Alexander Murdoch had always expressed a wish that he should be burled where he had lived his life on the West Coast, and where his sister would also be burled. Counsel quoted authorities which said there was no ownership of a corpse, but up till the time of burial it was in the care of the executors. After death the executor was entitled to possession, and was responsible for the burial of the body. It was contended that it was the duty of the executor to say what was to be done with the body, and where it was to be buried. There might be disputes in a family, in which case an executor would take charge. Mr Gresson, for defendants, said the vital matters in the claim had not been sworn to, but it was not disputed that an executor was responsible for burial arrangements. The executor had obligations, technical and legal, as to the custody of the body, but this did not confer the power to act arbitrarily. There was nothing in the will about the disposal of the body, and the allegations that "during the lifetime of Murdoch the question was' discussed" were not supported. The story would be flatly contradicted. James Alexander Murdoch had stated that he wished to be cremated, but only 12 hours after arrangements for burial had been made by the widow was effect given to his wishes. She had cancelled no arrangements as alleged. She had made funeral arrangements in the ordinary way, and later the executor made his own arrangements. The law cast upon the executor a great number of duties; but the Court had never hesitated to give directions. The executor asked for an order that, the body be burled nowhere but in the family'plot at Hokitika. He saw no grounds for saying that “in burying the body the Court had nothing to say but in everything else had authority.” The Court should direct the executor to give some consideration to the wishes of the deceased. Evidence of Widow Giving evidence, Margaret Murdoch, widow of James Alexander Murdoch, said she had notified the executor, John Murdoch, of the death within a few hours. She had straightway put in hand arrangements for the funeral. The undertakers had received no Instructions previously. Her husband had expressed to her a wish for cremation at Christchurch, where his old friend, Mr F. K. Hunt, had been buried. She had asked his wishes, and had assured him that they would be carried out. Her husband had also discussed with her the cost of cremation at Christchurch. Mr John Murdoch had arrived at 5 p.m. on the Tuesday, and had disapproved of cremation. In taking action she had merely given effect to' her husband’s wishes. ' J , To Mr Thomas: Her husband had lived his life mainly on the West Coast. He nad definitely expressed a wish to be cremated, and to the executor she had said that she would bring the ashes back to the Coast if that would suit them. The cremation was net the important point: she would agree to have the body buried in Christchurch. It was all so unseemly and she wished that he could be burled quietly. She had nothing in writing that he wished to be cremated. She had known for 24 hours that the executor was objecting to her action. She did not know that the Cremation Society had refused to carry out her instructions. She knew that her brother-in-law had been to the police, but she had been assured that there would be no interference. She thought it such an unseemly business that she would not change her arrangements. His Honour made an order restraining defendants from Interfering with the functions of the executor In disposing of the body. His Honour said it was a most unfortunate case, and while he did not challenge the evidence of Mrs Murdoch, he was appealed to in respect of the taw, which was quite clear. It was not only the authority of the executor, but also His duty, to say where the body should be burled and how it should be disposed of. He hoped the parties would find a way out of the difficulty. If thg body could be cremated then the ashes might be placed in the family plot. It was not his duty to say how the body should be disposed of.