Linforth v. Younger

This appeal involves the question of judicial power to enforce testamentary directions as to the place and manner of burial of a decedent’s remains as against the contrary wishes of a sole surviving sister, who is the next of kin.

The facts out of which the controversy arises are as follows: The testatrix, Mrs. Katherine C. Henderson, a widow, died testate on March 12, 1921, leaving an estate in excess of the value of $390,000. She was one of several surviving children of Mr. and Mrs. F. A. Hihn, pioneer settlers of Santa Cruz. Her husband, H. 0. Henderson, and her only child, as well as all of her brothers and sisters, except Mrs. Agnes Hihn Younger, predeceased her, so that at the time of her death her next of kin was Mrs. Younger, the sole surviving sister. Her other heirs at law were certain nieces and nephews. Three of them were Mrs. Younger’s children, and among the others were Ruth Ready, the sole child of a predeceased sister, and Teresa Hihn, the child of a predeceased brother. These five nieces and nephews were named as residuary legatees under the will. • The remains of all members of the Hihn family (except one, the mother of Ruth Ready), and the bodies of Mrs. Henderson’s infant child and her husband, were interred in the F.

There was no contest to the probate of the will, and on August 11, 1923, final distribution of the estate was granted. In accordance with the clause above quoted the sum of $20,000 was distributed in trust for the purposes set forth in said clause to the trustee therein named and to the Union Trust Company of San Francisco, which, at the request of the nominated trustee, was appointed to act jointly with him in carrying out the purposes of the trust. No appeal was taken from said decree, but after it became final Mrs. Younger refused to give her consent to the removal of the remains of her father and mother to the proposed mausoleum in San Mateo County, and finally at the end of ten years during which the trustees continued their efforts to effect an amicable arrangement with Mrs. Younger whereby the wishes of the testatrix might be carried out, Mrs. Younger objected also to the removal of the remains of the testatrix; whereupon the trustee petitioned

The trial court’s decision in the matter, from which this appeal has been taken by the trustees, embodies a written opinion theretofore'filed by the court setting forth its findings and conclusions. The opinion reads as follows: “In view of the refusal of Mrs. Younger, as surviving next of kin of the deceased, to permit the removal of deceased’s body from Santa Cruz I have been reluctantly forced to the conclusion that under Enos v. Snyder, 131 Cal. 68 [ 63 Pac. 170 , 82 Am. St. Rep. 330 , 52 L. R. A. 221 ], the testamentary trust for burial cannot be carried out. I must therefore direct the trustees to pay the trust funds to the persons and in the proportions provided, in the clause of the decree of distribution creating the trust, for the payment of any residue remaining. I have no sympathy with the rule announced in Enos v. Snyder. I feel strongly that a testator’s wishes for the disposition of his body expressed in his will should be carried out. But the reasoning adopted by the Supreme Court in deciding the Enos case is so sweeping that I cannot undertake to distinguish it. But while I may feel bound by that decision the Supreme Court need not, and I strongly recommend to the trustees that they take an appeal in an attempt to carry out the wishes of the testatrix. (Estate of Duffill, 188 Cal. 536 [ 206 Pac. 42 ]; Estate of Gartenlaub, 185 Cal. 648 [ 198 Pac. 209 , 16 A. L. R. 520 ].) This is one case in which I would welcome a reversal.” And in accordance with said written opinion, the trust fund was ordered distributed as

We are unable to agree with the trial court’s conclusion that the decision in Enos v.. Snyder, supra, is controlling in the present situation, first, because said decision is based upon facts essentially different from those of the case here presented. There the testator was survived by a widow with whom he had not lived for several years immediately preceding his death. During that time he resided at the house of a Mrs. Snyder, who was in no way related to him; and he died in her home. By his last will the testator directed that the time, place and manner of burial of his body should be “according to the wishes and directions” of Mrs. Snyder. It will be seen, therefore, that unlike the present case the testator there did not in the slightest way intimate in his will what his wishes were as to the place and manner of burial of his remains, but he attempted to delegate these matters to a non-relative ; and it was held that as between the wishes of his widow and those of Mrs. Snyder, the wishes of the widow were paramount.

Secondly, the “sweeping reasoning” adopted in that case, which is referred to by the trial court and upon which it based its decision, is clearly dictum, the effect of which is that in no case may the testamentary wishes of a decedent as to the manner and place of his burial be judicially enforced as against the contrary wishes of the next of kin, however remote the relationship may be; and such dictum, as shown by said decision, is based upon the strict, ancient English doctrine that there can be no property in a dead body [Williams v. Williams, L. R. 20 Ch. Div. 659) ; whereas, as will hereinafter be shown, the great weight of authority in this country is to the effect that so far as burial purposes are concerned, a person does possess certain elements of proprietary interest in his body, sufficient to enable him to make valid directions as to the place and manner of interment, which directions, if they be reasonable and appropriate, may be judicially enforced. It was expressly so declared in this state in the case of O’Donnell v. Slack, 123 Cal. 285 [ 55 Pac. 906 , 43 L. R.

Thirdly, the remaining ground upon which the decision in Enos v. Snyder, supra, was placed is that by penal statute existing at that time (sec. 292, Pen. Code) the duty of burying the body of a deceased person devolved upon certain relatives specified therein, which, in the Enos case, was the surviving widow; and that it was further provided in section 294 of said code that the persons charged with such duty were “entitled to the custody of such body for the purpose of burying it”. These code sections have since been repealed, however (Stats. 1931, p. 2451), and under the present law (General Cemetery Act, Stats. 1931, p. 2434) no such duty of burial is imposed nor right of possession of the body given where “other directions shall have been made therefor by the deceased”.

Appellants also raise the point that the objection now made by Elrs. Younger to the enforcement of the terms of the twelfth clause of said will constitutes an attack upon the validity of that clause, and that since she filed no contest to the will nor to any part thereof, and took no appeal from the

Therefore, since in our opinion the decision in Enos v. Snyder, supra, does not have the effect of denying to the trial court herein the judicial power to enforce the wishes of the testatrix as expressed by her in the twelfth clause of her will, in so far as they relate to the building of the mausoleum and the removal thereto of her remains and those of her predeceased husband and predeceased child, and inasmuch as the trial court has already determined that, if legally possible, the wishes of the testatrix in the respect above mentioned should be carried out, the' decree from which the appeal herein was taken is reversed, and it is ordered that a new decree be entered whereunder the terms of said twelfth clause, in the respects above mentioned, may be appropriately executed.

A petition by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on June 25, 1936.