[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 398 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 399 The controversy has its origin in an attempted disinterment of the bodies of the dead.
John D. Yome and the plaintiff, Anna Yome, his wife, bought an eight-grave plot in Holy Cross Cemetery, Brooklyn. They had buried two infant children in the same cemetery many years before. The approach of old age seems to have warned them of the need of providing a resting place for themselves and for others who were close to them. There is a statement by the plaintiff that the plot was taken with the thought of supplying a place of merely temporary burial. Its size, however, the number of its graves, and the use thereafter made of it, suggest a purpose more enduring. Holy Cross Cemetery is maintained by the Roman Catholic Diocese of Brooklyn. Burial within the cemetery is a privilege reserved to those who have died in communion with the Roman Catholic Church. The certificate of ownership delivered to the purchasers of plots expressly so provides, and provides also that the right of burial shall be subject to the rules and regulations of the Bishop of the Diocese. In the faith of the Church, plaintiff's mother and brother were buried in the plot so purchased. This was done some years ago while Mr. Yome was yet alive. The end came for him in February, 1925. On his deathbed he received the sacraments of his church, and he was laid in his grave in accordance with its rites. A rule of the Church forbids the removal of a body from consecrated ground to ground that is unconsecrated, or consecrated to another faith. *Page 401
There was swiftly a change of heart. Plaintiff, though baptized a Roman Catholic, became the owner of a plot in a non-Catholic cemetery, where it is now her purpose to be buried. She made demand upon the defendants, the Roman Catholic Diocese and the Supervisor of Cemeteries, for permission to remove the bodies. They refused to yield to the demand on the ground that disinterment for the purpose of removal to a cemetery of another faith would be an act of desecration. Plaintiff, seeking to justify her position, insists that her husband was without devotion to the tenets of the Church, and did not care where he was buried if only he was close to her. Defendants remind us on the other hand that he was reared in the faith of the Church, and died in it, sending for a priest upon his deathbed to gain the privilege of burial in consecrated ground. What the plaintiff says of her husband, she says in substance also of her mother and her brother. The infant children, buried long before, were too young to have religious convictions or wishes of their own. The surviving next of kin support the plaintiff in her request that the bodies be removed.
This action is brought to restrain the defendants from preventing the removal. A temporary injunction to that effect was granted at Special Term. The Appellate Division, affirming the injunction order, has certified an appeal to us. The questions framed are not free from ambiguity. We interpret them as propounding the inquiry whether the privilege of removal is to be accorded as a matter of right (Matter of Davies, 168 N.Y. 89;Matter of People [City Equitable Fire Ins. Co.], 238 N.Y. 147,155). If less than this was meant, an injunction so drastic would not have issued in advance of judgment. The order restrains the defendants from interfering with the removal of the bodies by the plaintiff during the pendency of the action. If it stands, there will be nothing left to try, for the bodies will be removed before the cause is brought to hearing. Such an injunction, if ever permissible *Page 402 in advance of final judgment, is plainly inappropriate unless the undisputed facts are such that a trial is a futility (Bachman v. Harrington, 184 N.Y. 458). If there are motives to be probed and opposing equities to be weighed, there must be the searching scrutiny of a trial and the sanction of a judgment.
Upon the record before us, one may draw conflicting inferences of duty and propriety. The wishes of wife and next of kin are not always supreme and final though the body is yet unburied (Pettigrew v. Pettigrew, 207 Penn. St. 313, 319). Still less are they supreme and final when the body has been laid at rest, and the aid of equity is invoked to disturb the quiet of the grave (Matter of Ackermann, 124 App. Div. 684, 685; Weld v.Walker, 130 Mass. 422, 424; Pettigrew v. Pettigrew, supra;Wilson v. Read, 74 N.H. 322, 325; Toppin v. Moriarty,59 N.J. Eq. 115, 118; Polish Nat. Church v. Soklowski, 159 Minn. 331; Pulsifer v. Douglass, 94 Me. 556). There will then be "due regard to the interests of the public, the wishes of the decedent, and the rights and feelings of those entitled to be heard by reason of relationship or association" (Pettigrew v.Pettigrew, supra). A benevolent discretion, giving heed to all those promptings and emotions that men and women hold for sacred in the disposition of their dead, must render judgment as it appraises the worth of the competing forces (Cohen v.Congregation Shearith Israel, 114 App. Div. 117; 189 N.Y. 528;Matter of Bauer, 68 App. Div. 212; Snyder v. Snyder, 60 How. Pr. 368).
To the making of that appraisal, many factors will contribute. One may not fix their values in advance, for in so doing one would overlook the varying force of circumstance. One can do little more than offer the suggestion of example. The wish of the deceased, even though legal compulsion may not attach to it (Williams v. Williams, L.R. 20 Ch. Div. 659), has at least a large significance (Pettigrew v. Pettigrew, supra, at p. 317; *Page 403 Pierce v. Swan Point Cemetery, 10 R.I. 227, 239, 242;Gardner v. Swan Point Cemetery, 20 R.I. 646, 649; Wilson v.Read, supra). Especially is this so when the wish has its origin in intense religious feeling (Matter of Donn, 14 N.Y. Supp. 189; approved in Matter of Ackermann, supra). Only some rare emergency could move a court of equity to take a body from its grave in consecrated ground and put it in ground unhallowed if there was good reason to suppose that the conscience of the deceased, were he alive, would be outraged by the change. Subordinate in importance, and yet at times not wholly to be disregarded, are the sentiments and usages of the religious body which confers the right of burial. We do not interpret the terms of this certificate of purchase as importing a contract between the cemetery and the owners of the plot that there shall be no disinterment at any time if forbidden by the tenets of the Church or the orders of the Bishop. How far such a contract, if made, would call for enforcement by injunction, there is no occasion to determine (Cohen v. Congregation, etc., supra). Even without contract, sentiments and usages, devoutly held as sacred, may not be flouted for caprice. They must be weighed in the balance with the motives and feelings that sway the acts of the survivors. Removal at the instance of a wife or of kinsmen near in blood to satisfy a longing that those united during life shall not be divided after death, may seem praiseworthy and decorous when removal at the instance of distant relatives or strangers would be arbitrary or cruel. The dead are to rest where they have been laid unless reason of substance is brought forward for disturbing their repose (Matter of Ackermann, supra; Polish N. Church v.Soklowski, supra).
We have sought, not to declare a rule, but to exemplify a process. The considerations we have instanced and others of like order may move a court of equity to keep a grave inviolate against the will of the survivors. They are none of them so absolute, however, that they may *Page 404 not be neutralized by others. The wish expressed during life may have been declared casually or lightly. The bond of religion may have been weak, and the bond of marriage or of kinship may have been strong. Separation after death from the resting place of wife or child may have seemed an evil more poignant than separation after death from the faithful of the church. We are told by Mrs. Yome that so her husband would have felt. Her statement does not control us. To some extent, though not at all conclusively, it is contradicted by his acts. The trier of the facts must probe his state of mind. With this, when it is ascertained and the intensity of his feelings measured, must be compared the sentiments and wishes of wife and kin surviving. A like process must be followed before the other graves may be disturbed. Right must then be done as right would be conceived of by men of character and feeling.
The order of the Appellate Division and that of the Special Term should be reversed without costs; the first, second and third questions are not answered since they contain recitals that are inappropriate and to some extent erroneous; and the fourth question, which is construed as an inquiry whether a case for an injunction has been made out as a matter of right upon uncontroverted facts, is answered in the negative.