It is asserted in many .cases, following the Roman law, that the exclusive right of burial and the right to. *370select the place of burial rests, in the absence of any testamentary direction on the part of the deceased, in the next of kin (4 Bradf. Sur. R., 532; 3 Edw. Ch., 152 ; Coppers’ case, 58 How. Pr., 55; Tyler’s Ecc. Law, sec. 971; Rosseau agt. City of Troy, 49 How. Pr. 492 ; Wyncoop agt. Wyncoop, 42 Penn., 293). For curious and interesting discussions and notes to cases upon the subject, see also notes to Moak's Eng. Rep. (vol. 12, p. 656), Pierce agt. Proprietors of Swan Point Cemetery (10 R. I., 227). Most of the cases there referred to arose with respect to the right to protect the place where •the remains were buried, to prevent a disinterment or to collect from the executors, husband or relative of the deceased the expenses of the funeral. In the absence of a contention prior to burial, as to the right between relatives to designate the place of burial, the broad doctrine that the right rests exclusively with the next of kin can hardly be considered as a judicial exclusion of the right of the widow. The words “ next of kin,” used simpUciter, without anything in the context to indicate a different meaning, mean those of the kindred or blood; excluding the widow (Slosson agt. Lynch, 43 Barb., 147). It is otherwise as to statutes in which the intent is plain that the widow is included (Merchants’ Ins. Co. agt. Hinman, 32 Barb., 410 ; Green agt. Hudson R. R. R. Co., 32 Barb., 25). In the Secor case (10 Albany Lam Journal, 70), after the burial of the deceased by the widow, with the consent of the son, the latter was enjoined from removing the remains for the purpose of interment in a lot of his own. It is true that in the case it was remarked that the wife’s right of burial was better than the son’s, but that was .not the point involved, and the case was well disposed of on the :ground that the son did not, at the time of burial, dissent. In Pierce agt. Proprietors, &c. (10 R. I., 227), the widow, after burial, was required at the suit of the son to restore the remains of her husband to the burial lot in which they had been interred upon his death, with her consent and the consent of his children, and from which she had removed *371them without their consent for the purpose of interment elsewhere.
In Wyncoop agt. Wyncoop (42 Penn., 293), the widow was denied the right to remove the remains of her deceased husband from the cemetery in which his relatives had interred them, and this under circumstances of peculiar urgency in her favor. The courts will intervene to protect the grave where the remains lie, but are slow to permit, against the objection of the relatives, a removal after they are once buried (See Moak's note, supra).
It is believed that this question must be solved upon equitable grounds. While there is property in the burial lot, in the monuments, in the ornaments and decorations of, the deceased or his grave, there is none in the remains themselves. Since the common law cannot protect or bestow them as property, or afford an adequate remedy in cases which sometimes occur, equity has been invoked to grant such protection and give such remedies as seem to be required by the circumstances,- and are in consonance with the feelings of mankind, and equity has assumed jurisdiction (Kurtz agt. Beattie 2 Peters, 566, 584; Trustees agt. Walsh, 57 Ill., 363; Pierce agt. Proprietors, &c. ; Wyncoop agt. Wyncoop ; Rosseau agt. City of Troy ; Secor's case, above cited, see 4 Alb. Law Jour., 56; 17 ib., 258). In the case of Pierce agt. Proprietors, &c., it was said that the person having charge of the remains held them as a sacred trust for the benefit of all who may, from family ties or friendship, have an interest in them; that in case of a contention, the court should assume an equitable jurisdiction over the subject, somewhat in analogy to the care and custody of infants, and make such a disposition as should seem to be best and right under all the circumstances. I entirely concur in this view.
To lay down the inflexible rule that the widow is to be preferred to the children, might, rare as such contentions are, sometimes result in great harshness and outrage. Adopting this rule, I award the disposition of these remains to the son, *372to the end that they may be buried in the lot purchased by the 'deceased in his lifetime, near the place of his early residence, where his first wife, and two children by her, lie buried. He had no children by his last wife; the lot in which she proposes to bury him is her father’s. It cannot now be known whether she will find her grave in the same lot and not by the side of another husband. It seems to be more in consonance with what we may presume his feelings in his rational moments to have been, to bury him by the side of his children and their mother, rather than alone in the lot of a stranger, and certainly more in consonance with the feelings of those who are bound closest to him by the ties of blood and longest affection. I mean to recognize the fact that circumstances may exist which should give the widow the preference over the son, but in this case I think the claim of the son is to be preferred.
The motion is granted.