CHAPTER XXII.

OF THE FUNERAL, COLLECTING THE EFFECTS, AND TESTAMENTARY

EXPENSES.

Disposal of corpse.

vide burial.

SECT. 1.-Of the funeral.

THERE is no property in a dead body, and a person cannot dispose of his body by Will, but after his death his executors have a right to the custody and possession of the body until it is properly buried (a).

It was stated by Lord Campbell, C.J., in Reg. v. Vann (b), Obligation of that there is no doubt that if a parent has the means of proparent to providing Christian burial for his child he is bound to do so; but it was held that if he has not the means, though the body remains unburied and becomes a nuisance to the neighbourhood, he is not indictable for the nuisance, notwithstanding he could have obtained money for the burial expenses by way of loan from the poor law authorities of the parish, for he is not bound to incur a debt. It would seem that in such Obligation of cases, whether the deceased was residing with the parent or parish officers. emancipated from his parent's roof, the duty of burial properly devolves upon the parish officers under 7 & 8 Vict. c. 10, s. 31 (c). And in Clark v. the London General Omnibus Co., Ltd. (d), Farwell, L.J., intimated that he was not at all satisfied that the father is under an actual legal liability, as distinguished from a moral duty, to go to the expense of the burial of his child, even in the case of a child twelve years of age living with her parents.

Obligation of husband.

There would seem, however, to be a legal liability upon a husband to bury his wife; and a volunteer, employing and

paying an undertaker to conduct the funeral, is entitled to recover the expense so incurred from the husband (e).

body once

When the body is buried in consecrated ground it remains Removal of under the protection of the Ecclesiastical Court of the diocese, buried. and cannot be removed from the grave or vault, or mausoleum in which it has been placed, except under a faculty granted by an Ecclesiastical Court, and then only to another grave or vault in consecrated ground, and the Court would not be justified in granting a faculty for enabling remains to be removed after burial for cremation (ƒ).

When burial in consecrated ground and cremation are Cremation. both desired, cremation should precede and not follow burial. The burial service does not contemplate cremation. But where a body has been consumed in a fire, it has been customary to collect the ashes and to bury them in a churchyard, accompanied with the use of the Order for the Burial of the Dead, and there does not appear to be any legal objection to the same course being followed where there has been a previous cremation in pursuance of directions left by the deceased (g). The body of every person dying in this country, with certain exceptions, is entitled to Christian burial, and where a body has been buried in unconsecrated ground the Home Secretary will, under s. 25 of 20 & 21 Vict. c. 81 grant licence, on a proper application, for the removal of the body from the grave in which it is interred for the purpose of burying it in approved consecrated ground, but no licence would be given to remove the body for the purpose of cremation (h).

To burn a dead body, instead of burying it, is not a misdemeanor, unless it is so done as to amount to a public nuisance. If an inquest ought to be held upon a dead body, it is a misdemeanor so to dispose of the body as to prevent the coroner from holding the inquest (i).

When cremation may be a misdemeanor.

The holding of inquests is regulated by the Coroners Act Inquests.

In absence of directions body should

be buried not

cremated.

Anatomy Act, 1832, permits anatomical examination subject to certain restrictions.

Funeral expenses.

Liability of personal representative.

1887 (50 & 51 Vict. c. 71), and the expenses are paid by the local authority.

If the deceased has left directions as to the disposal of his body, it is the duty of his personal representative to give effect to his wishes. But if the deceased has left no testamentary or clear directions as to his body, it is entitled to Christian burial, and the executor would not be warranted, to gratify his own fancy, without the deceased's sanction, in cremating the body of his testator, and so depriving it of being buried in the state and condition contemplated by this rule of law (k).

By s. 7 of 2 & 3 Will. IV. c. 75 (Anatomy Act, 1832), an executor or other party having lawful possession of the body of a deceased person, and not being an undertaker, may permit the body to undergo anatomical examination, unless the deceased shall have expressed a contrary desire, or unless the surviving husband, or wife, or any known relative of the deceased person, shall require the body to be interred without such examination.

Sect. 8 makes provision for carrying into effect any direction by the deceased for anatomical examination, unless the deceased's surviving husband, or wife, or nearest known relative, or any one or more of such person's nearest known relatives, being of kin in the same degree, shall require the body to be interred without such examination.

Funeral expenses according to the degree and quality of the deceased are to be allowed of the goods of the deceased before any debt or duty whatsoever (1). And under s. 7 of the Finance Act, 1894, in determining the value of an estate for the purpose of estate duty, allowance is to be made for reasonable funeral expenses.

With respect to the liability of an executor or administrator to the expenses of the funeral of the deceased, it appears to be clear that if an executor or administrator gives orders for the

funeral, or ratifies or adopts the acts of another party who has given such orders, he makes himself liable individually, and not in his representative character, for the reasonable expenses. And notwithstanding that, generally speaking, an administrator is not bound, as such, by his acts done before. the letters of administration were obtained, yet it would seem that if, before taking out letters, he gives orders, or sanctions the orders which another person has given, for the funeral of the deceased he will be thereby bound, after he has become administrator, to satisfy the charges incurred under such orders (m).

It seems now established, that, in the absence of evidence to charge any other individual, an executor with assets is answerable, in point of law, without any express contract, for the funeral expenses of his testator, suitable to his degree (n).

stranger

giving order and paying for funeral.

If a person, other than the executor, gives the order for Right of the funeral and pays for it, he may have an action against the executor for so much of the cost as an executor might reasonably pay (0), unless perhaps it could be shown that he intended the payment as an act of bounty (p).

The law casts upon a husband the duty of burying his wife, but he is entitled to retain the sums expended on her funeral out of her estate as against her creditors (q).

Right of husdeceased

band against

wife's assets.

expenses

The rule appears to be, that the executor is entitled to be Reasonable allowed reasonable expenses, according to the testator's con- allowed. dition in life. The amount must necessarily vary according to the circumstances of each case (r). As against creditors no more will be allowed for the funeral than is necessary, regard being had to the position in life of the deceased (8). But where the estate is solvent the inquiry would seem to be whether the sum expended exceeds what is usual at the

(m) Williams (10th ed.) 1426. (n) Ibid., 1427; and see Sharp r. Lush, (1879) 10 C. D. 468, 472.

(0) Green v. Salmon, (1838) 8 A. & E. 348.

(P) Coleby r. Coleby, (1866) 12

Jur. (N. S.) 496.

(q) Re M'Myn, (1886) 33 C. D.

575.

(") See Williams (10th ed.) 737.
(8) Hancock v. Podmore, (1830) 1
B. & Ad. 260.

Mourning for widow and family not allowed.

Cost of tombstone.

As to inven. tories.

funerals of persons of the same rank and fortune as the deceased (t).

Mourning furnished to the widow and family of the deceased is not a funeral expense such as can be claimed against the estate (u).

The cost of a tombstone will not be allowed as against creditors, or as against beneficiaries without their consent in the absence of any testamentary direction (x). If a testator has directed or bequeathed a sum certain, or a sum capable of being ascertained, to be applied in the erection of a tombstone or monument to his memory, either in a church, on on consecrated or unconsecrated ground, if the executors insist upon the trust being executed it would seem the Court is bound to see it carried out, although there may be no one able to compel the executors to carry it out (y). The same would seem to apply to a direction to expend a sum of money in repairing a tombstone or vault (z).

SECT. 2.-Of Collecting the Effects.

As soon as possible after the death, the executor, or the person entitled to and intending to apply for grant of letters of administration, should ascertain the particulars of the estate of the deceased with a view to the preparation of the Inland Revenue affidavit, which must be delivered before grant of probate or letters of administration (a), and collecting, getting in and preserving the effects.

The repealed (b) statutes of 21 Hen. VIII. c. 5, and 22 & 23 Car. II. c. 10, provided for the making of inventories by executors and administrators of the goods and chattels of the deceased. But the bond given under the Court of Probate Act, 1857 (20 & 21 Vict. c. 77), s. 81, is conditioned to make (t) Mullickr. Mullick, (1829) 1 Knapp, 245.

() Lloyd r. Lloyd, (1852) 2 Sim. (N. S.) 255, 264; Re Dean, ubi sup.; and see post, p. 407.

(a) See ante, p. 163.

(b) Repealed by 20 & 21 Vict. c. 77. s. 80; and see ante, p. 132, as to the administration bond required relating to collecting, getting in and adminis tering the personal estate.