Matter of Currier (Woodlawn Cemetery)

Fuld, J. The courts below have granted petitioner permission to remove his mother’s body from a mausoleum in Woodlawn Cemetery to a grave in a lot nearby. Whether that determination exceeds the bounds of permissible discretion is the question for decision. Mrs. Margaret Currier had purchased the burial lot a few months before acquiring the land on which she later erected the mausoleum, and it was in that structure that she was interred when she died some twenty years ago. It was her hope that in *164 time her children, a son and two daughters, would be laid to rest beside her in the tomb. However, the daughters, married and living in Missouri, have made arrangements to be buried in that state, and her son has expressed the intention of being interred in a grave in the adjacent lot. Early in 1949, the children sought to have their mother’s body transferred to this plot from the mausoleum, but the corporation operating the cemetery refused its consent. Its refusal necessitated the son’s application to the courts under section 89 of the Membership Corporations Law. That section provides that, if either the owners of the plot, or the surviving wife, husband, children or parents, or the cemetery corporation withhold consent to the removal of the body, ‘ ‘ permission by the county court of the county, or by the supreme court in the district, where the cemetery is situated, shall be sufficient.” The quiet of the grave, the repose of the dead, are not lightly to be disturbed. Good and substantial reasons must be shown before disinterment is to be sanctioned. (See Yome v. Gorman, 242 N. Y. 395,403; Matter of Achermann, 124 App. Div. 684, 685.) While the disposition of each case is dependent upon its own peculiar facts and circumstances and while no all-inclusive rule is possible, the courts, exercising a “ benevolent discretion ”, will be sensitive “ to all those promptings and emotions that men and women hold for sacred in the disposition of their dead ”. (Yome v. Gorman, supra, 242 N. Y., at p. 402.) And looming large among the factors to be weighed are the wishes of the decedent himself. If the deceased had been a member of a faith which forbade disinterment, if he had agreed with the cemetery corporation that there should be no exhumation whatsoever, if he had elected to be laid in hallowed earth and the request was for reburial in unconsecrated ground, then only compelling considerations would justify disinterment and removal. (See Yome v. Gorman, supra, 242 N. Y. 395; Cohen v. Congregation Shearith Israel, 114 App. Div. 117, affd. 189 N. Y. 528.) But the case before us presents no such factors. Here, only the cemetery corporation, at best a formal party, opposes the removal. Those most closely bound to the deceased by ties of love and affection would have her body moved from the mausoleum to a grave close by. And we are persuaded that *165 there was basis for concluding that not whim or caprice motivated their decision, but rather sound reason and laudable purpose. It may well have been Mrs. Currier’s intention that she be interred in the mausoleum and that it house her body and those of her children but, the courts could find, it was her desire, prime and paramount, that her children be with her after death. When, therefore, it appeared that that expectation was not to be realized — because the daughters will be buried in another state and the son prefers an earthy grave — the courts below were warranted in deciding that, if presented with the alternative of remaining alone in the sepulcher or of being with her son and his family in the earth, she would have chosen the latter. Surely, there is nothing unreasonable or arbitrary about a determination that permits removal <£ to satisfy a longing that those united during life shall not be divided after death ”. (Yome v. Gorman, 242 N. Y., at p. 403.) The order of the Appellate Division should be affirmed, with costs.