Brady v. . Presnell

Clarkson, J. Plaintiff rightly contends that the question involved is the interpretation to be placed upon the provisions of the written instrument, a combined contract and mortgage, set forth in the record. *662 The evidence undisputed is to tbe effect that Cary R. Cheek had two children involved in the controversy (1) C. C. Cheek and (2) Rosanna Evie Cheek, who married L. M. Presnell. Cary R. Cheek made her home with L. M. Presnell and his wife Rosanna Evie Presnell from the time they gave the mortgage to C. C. Cheek, on 21 September, 1921, until her death on 21 January, 1926, at Okeechobee, Fla. The testimony of L. M. Presnell, in-part, is as follows: “I have lived, since 1926, a year and a half in Asheboro. I lived on this farm until I got burned out. . . . She (Cary R. Cheek) was actually living with me at the time this paper was made to Mr. Cheek and she made her home with me from then until the time of her death. I paid her doctor bills and her other expenses during that time, and I supported and maintained her and cared for her during that time. I paid all of her expenses during the balance of her life. She died in my home at Okeechobee, Florida, on 21 January, 1926. ... I told Cole (his brother-in-law) I wanted the money to pay for the old lady’s funeral expenses and he let me have it for that purpose. After that I secured a check from C. C. Cheek for $230.00. It is dated, I notice, 25 January. I received it about this time. It was a day or so after I brought her in from Florida.” O. C. Cheek testified, in part: “The other expense that I paid was a charge for a hearse which was $10.00. . . . My mother died in Florida. Okeechobee was her home at the time she died. She was living-down there. I do not happen to know how far it was from where she was buried. I cannot say that it was up towards 1,000 miles. I have never had occasion to estimate the distance. The $25.00 truck charge is for transportation from Aberdeen to Bennett. . . . This place was responsible for what he did. If he did not do it I was to take it up. . . . That check was paid by me. It is the amount of $230.00. The check was introduced in evidence, which reads as follows: ‘Bennett, N. C., 25 January, 1926 — Pay to the order of L. M. Presnell, $230.00'— two hundred thirty dollars — To Peoples Bank and Trust Company, Bennett, N. C. — C. C. Cheek.’ (The following was endorsed on the back of the check: ‘Pay to E. B. Cole, L. M. Presnell.’) Lacy (L. M.) Pres-nell told me he failed to get it as early as expected. In order to get away he had to make a schedule on train, and that he borrowed it from Edgar (E. B.) Cole and promised to replace it. He told me as soon as the funeral was over he was anxious to get that money back to Edgar and we went over to the office, little office at the planing mill at Bennett. It was just after the funeral. My mother was brought to Bennett and left at my sister’s home. The $230.00 was never paid to me.” Edgar (E. B.) Cole was L. M. Presnell’s brother-in-law, and no relation to O. C. Cheek. J. A. Purvis testified, in part: “I live at Ben *663 nett, N. 0. ... I was cashier of the bank until it closed. . . . Mr. Cbeek came to the bank and made arrangements for us to wire the money to L. M. Presnell in Florida. We did actually wire the money.” We think, under the evidence, that the $230.00 was advanced in good faith by C. C. Cheek, under the contract-mortgage and to aid in bringing his mother’s body back to the old home burial ground. L. M. Presnell, at the time, did not have the money for the purpose. The temporary obtaining it by L. M. Presnell, under the circumstances, with a corpse to be transported, from his brother-in-law, Edgar (E. B.) Cole, and informing his brother-in-law that he thought he could get it from C. C. Cheek, was not such an obligation to Cole that would defeat Cheek’s claim. This he did and returned the exact money (check) to E. B. Cole that he received from C. C. Cheek — $230.00. The only serious question for us to determine is whether the language in the mortgage “and give her body a decent burial at death” would include the expense of bringing her body to the old home burial ground. Presnell, who owed that obligation to O. O. Cheek never questioned that this was his legal duty, under his contract-mortgage to Cheek. He was unable to finance it and called on Cheek, who did. Plaintiff quotes Webster as follows: “Burial: The act of burying a deceased person; sepulture; interment; the act of depositing a dead body in the earth, in a tomb or vault, or in the water.” Black’s Law Dictionary defines burial: “The act of interring the human dead.” It is contended by O. C. Cheek that wherever Cary R. Cheek died, that the contract-mortgage would humanly and naturally contemplate that she would be buried in the old home burial ground, where others near and dear to her sleep, awaiting the resurrection. Presnell so construed the agreement. We find, on examination of the question: The determination as to how a corpse shall be dressed for burial and the quality of the coffin and the box in which it is to be placed, as well as the depth of the grave, are matters for those who have the burial in charge, so that what is a “decent,” “proper,” or “respectable” burial will vary with the financial or social standing of the deceased and his relatives, the customs of the community, and the rules of religious, social, and political organizations to which he may have belonged. Seaton v. Commonwealth, 149 S. W., 871, 872, 149 Ky., 498, 42 L. R. A. (N. S.), 211. In 11 R. C. L., part sec. 250, at p. 225, we find: “If a person having an ample estate dies while traveling in a foreign country, there is a legal liability on the part of his estate for services in connection with embalming and transporting his body from the place of death to the place 'of burial.” *664 In 24 C. J., part sec. 927(4), at p. 308, it is said: “Special circumstances may justify an expenditure unusually great in one or more particulars, as where one dies far from Ms home or bis proper burial place and transportation of the body becomes necessary and proper, or where kindred and friends are summoned from a distance to attend the funeral or accompany the remains from a distant point.” Barbee v. Green, 92 N. C., 471. In the ancient day Abraham purchased Machpelah “for a possession of a burying place.” Gen. 23 :20. Both he and his wife were buried there. Jacob, his grandson, died in Egypt and Joseph and his brethren took his body to Canaan “and buried him in the cave of the field of Mach-pelah.” Gen. 5 :13. No legal authorities on the subject have been cited to us in the briefs of the parties. Earnily burial grounds are everywhere in the State and in more recent times families have plots in cemeteries in the cities and towns. Taking into consideration all the facts and circumstances, what was the contemplation of the parties when the contract-mortgage was executed ? The language used in the different places in the mortgage “and give her body a decent burial at death,” etc. The usage or custom of the locality or community in relation to such matters; the reasonableness of the amount are for the jury to determine, under proper instructions by the court below. There can be no question as to the $60.00 with interest from 21 September, 1921. This is conceded. Nor the charge for the hearse $10.00, and the charge of $25.00 truck for transportation of the corpse from Aberdeen to Bennett is also allowable. For the reasons given, there must be a New trial.