the payment has been made."

There are but few cases in this State in which the question has been considered. Fletcher v. Jackson, 23 Vt. 581, 56 Am. Dec. 98, was a bill to compel contribution. The bill set up that a judgment had been recovered against the orators, and that it had been paid by them. The opinion is referred to for a statement of the facts established by the testimony taken, but without stating the manner of payment the court says: "We entertain no doubt, upon the proofs in the case, that the plaintiffs paid the judgment against them jointly, and may well sustain this suit in their favor jointly. Whipple v. Briggs, 28 Vt. 65, was a joint action by sureties against their principal. The plaintiffs had given their own notes to the holders of the paper on which they were sureties, and the notes so given had been taken as payment. This was considered to be clearly a payment from a joint fund. In Prescott v. Newell, 39 Vt. 82, the plaintiffs had made pay ments for their co-surety from their individual resources, but under an arrangement that they would stand together and share the burden equally; and it was held that as to these pay ments a joint action could not be maintained. If the character of this fund is to be determined by the relation of the plaintiffs to it after the deposit was made, it must be considered a joint fund. It stood in their joint names, was held by the bank as collateral against them jointly, and could be disposed of by them only through a joint order. But if the origin of the fund is controlling, the situation is different. Leaving the $600 out of consideration for the present, the remainder of the fund was made up of the several and unequal contributions of the plaintiffs. It was not a joint fund except as made so by the action of the plaintiffs among themselves. It was not the result of any joint liability assumed by the plaintiffs to some other person, nor the product of any undertaking in which they were jointly interested. It is evident that, upon the authority of many of the cases, this deposit could not be considered a joint fund, within the meaning of the rule.

The foundation of the suit is the implied promise of the principal to indemnify his sureties. The undertaking of the sureties is several and the promise of indemnity which the law raises at the time of the undertaking is therefore several. It was only with hesitation that sureties were permitted to sue jointly on the ground of joint payment. As late as the decisions in Gould v. Gould, Gould, 8 Cow. 168, and 6 Wend. 263, it was doubted whether sureties could so shape a payment as to give themselves a joint claim; and Osborne v. Harper was spoken of as a case decided upon its peculiar circumstances, and a doubtful precedent in 14 L. R. A.

sureties to sue jointly when they have paid the claim by their joint note, or with money obtained upon their joint credit, is well established, and has been fully approved in this State. So much having been decided, we see no objection to going further. It is evident that the law as now settled permits sureties to so shape a payment as to give themselves a joint claim upon their principal. If these plaintiffs had provided the deposit by discounting their joint note, instead of making up the deposit from the money they severally verally had on hand, there would have been no question as to their right to maintain a joint action. The practical result of the doctrine is to make the liability of the principal several or joint at the option of the sureties; and so long as sureties can make their principal liable to them jointly by borrowing upon this joint note the money used in payment, we see no reason why they may not be permitted to accomplish the same end by making a joint deposit to meet the liability. The fund from which this payment was made having been joint in fact, we are not disposed to follow the authorities which would deprive it of that character by looking to the several payments of which it was made up. We hold that the payment from this deposit was such as to entitle the sureties to maintain a joint action. A question is raised by the plaintiffs as to the amount they are entitled to recover. transaction between Hall's assignee and the plaintiffs has been stated. The plaintiffs also received $125 from their co-surety Jones, in his notes, which were afterwards paid to the plaintiff's use. There was no agreement between the plaintiffs and the parties making these payments that the payments should be applied on this indebtedness. Nothing further appears in regard to the matter. In entering judgment for the plaintiffs, the court below deducted from the amount paid by them the sums they had received as above stated. This is claimed to have been error. It is true that the plaintiffs have paid a certain amount to the holder of this note. But a part of this amount they have received from their co-sureties. The loss which the plaintiffs have sustained by reason of their liability for the defendant is measured by what they have paid above the sums so received. The obligation of the defendant is to recompense the plaintiffs for the loss they have actually suffered. That obligation is satisfied by the judgment rendered below. The sums excluded from that recovery, although not paid by Hall's assi assignee and Jones to the creditor, were properly paid by them on account of their suretyship liability, and are losses which the principal is holden to make good to them.

Judgment affirmed

The

Lena LARSON, Respt.,

v.

overruling a demurrer to the complaint in an action brought to recover damages because of

(........Minn.........)

*1. The right to the possession of a dead body for the purposes of preservation and burial belongs, in the absence of any testamentary disposition, to the surviving husband or wife or next of kin, and the right of the surviving wife (if living with her husband at the time of his death), is paramount to that of the next of kin. 2. This right is one which the law recognizes and will protect, and for any infraction of it, such as an unlawful mutilation of the remains, an action for damages will lie. In such an action a recovery may be had for injury to the feelings and mental suffering resulting directly and proximately from the wrongful act, although no actual pecuniary damage is alleged or proven.

A

(November 10, 1891.)

PPEAL by defendant Chase from an order of the District Court for Hennepin County *Head notes by MITCHELL, J.

NOTE.-Rights and duties in regard to the burial of the dead.

It is universally recognized that there is a duty owing either to society or decedent that the body of a deceased person shall be decently buried. Pierce v. Swan Pt. Cemetery & M. Proprs. 10 R. I. 238, 14 Am. Rep. 667; Chapple v. Cooper, 13 Mees. & W. 252; Queen v. Stewart, 12 Ad. & El. 773; Gilbert v. Buzzard, 2 Hagg. Consist. 333; Patterson v. Patterson, 59 N. Y. 583, 17 Am. Rep. 384.

This duty is imposed primarily on the executor where there is a testamentary disposition. 2 Bl. Com. 508; Patterson v. Patterson, supra; Wynkoop v. Wynkoop, 42 Pa. 301, 82 Am. Dec. 506; Williams v. Williams, L. R. 20 Ch. Div. 659.

The executor has the right to direct in what way the funeral is to be conducted and there is an obligation on him to pay the expenses. Hewett v. Bronson, 5 Daly, 7.

It seems that the executor in directing the form of the burial should obey the expressed reasonable wishes of the testator as to the disposition of his remains even though they are not in accord with the wishes of the next of kin. Re Denison, 31 Leg.

Int. 196.

The estate of the decedent is bound in the hands of his executor for the payment of the expenses of the funeral, though there is some conflict in authority as to whether the estate is liable directly to the one furnishing the services or to the executor after he has settled the expenses. See Hapgood v. Houghton, 10 Pick. 156; Campfield v. Ely, 13 N. J. L. 150: Myer v. Cole, 12 Johns. 349; Dermott v. Field, 7 Cow. 58; Edwards v. Edwards, 2 Cromp. & M. 612; Moak's notes to Re Bettison, 12 Eng. Rep. 658; Re St. George in the East, 18 Eng. Rep. 423.

The right and duty of the personal representative terminate with the burial. Wynkoop v. Wynkoop, 42 Pa. 301, 82 Am. Dec. 506.

Griffith v. Charlotte, C. & A. R. Co. 23 S. C. 25, 24 Am. Law Reg. N. S. 586, holds that the administrator has no such property in the body of his decedent as will enable him to recover damages for its mutilation through the negligence of a railroad company.

In the absence of a testamentary disposition the duty of burial is cast upon other persons depending

of the dead body of plaintiff's husband. Affirmed.

The facts are stated in the opinion. Messrs. Bradish & Dunn and Babcock & Garrigues, for appellant:

Damages for the alleged trespass upon the body of the deceased husband, if any, should go, not to the surviving widow, but to the general estate of the deceased, which must pay the funeral expenses in preference to any other claim. "The administrator must bury the deceased in a manner suitable to the estate he leaves behind him."

Wms. Exrs. pp. 829, 1523; 2 Bl. Com. 508. An administrator cannot maintain an action for damages for the mutilation of the body of his intestate, because when mutilated "the man was dead, suffered no pain, no mental anguish, incurred no doctor bills, lost no time, and because a corpse has no value and cannot therefore be injured or damaged."

Griffith v. Charlotte, C. & A. R. Co. 23 S. C. 38; Bishop, Crim. Law, § 780; 4 Bl. Com. 235;

largely upon the circumstances of the particular case. It may fall upon the administrator. Wynkoop v. Wynkoop, supra.

A parent must bury his deceased child. Reg. v. Vann, 2 Denison, Crim. Cas. 325.

In case the person is without property it seems that he must be buried by the one under whose roof he died. Queen v. Stewart, 12 Ad. & El. 778.

The husband must bury his wife. Jenkins v. Tucker, 1 H. Bl. 90; Ambrose v. Kerrison, 10 C. В. 776; Chapple v. Cooper, 13 Mees. & W. 252. See also Sears v. Giddey, 41 Mich. 590.

Right to control disposition of body. Controversies as to the disposition of the bodies of deceased persons are within the jurisdiction of equity. Weld v. Walker, 130 Mass. 423, 39 Am. Rep. 465; Pierce v. Swan Pt. Cemetery & M. Proprs. 10 R. I. 227, 14 Am. Rep. 667.

In conflicts between the husband and next of kin as to the disposition of the body of the deceased wife, it would seem that the duty imposed upon the husband to bury the remains carries with it the right to dictate as to the manner and place of their disposition, and so is the authority. Durell v. Hayward, 9 Gray, 248, 69 Am. Dec. 248; Lakin v. Ames, 10 Cush. 221; Cunningham v. Reardon, 98 Mass. 538, 96 Am. Dec. 670; Cook v. Walley (Colo.) Oct. 26, 1891; Johnston v. Marinus, 18 Abb. N. C. 72.

In an Ohio case reported in 4 Am. Law Times, 127, it was held that a husband might recover damages for the maltreating of the dead body of his wife by physicians to whom the body had been delivered for the purpose of dissecting and examining the throat. See also 4 Alb. L. J. 56; 3 Chicago, Legal News, 378.

In analogy to the right of a husband, some early cases hold that the wife has the duty and right of arranging the burial of her deceased husband, it being held that decent Christian burial of her husband is of such benefit to a widow that though an infant she is bound by her contract for the furnishing of it. Chapple v. Cooper, 13 Mees. & W. 252.

The doctrine that the next of kin have rights as to the disposition of the body of a decedent if not originating in, at least are given definite form by, the report of the referee in the Case of the Wynkoop v. Wynkoop, 42 Pa. 300, 82 Am. Dec. 506; 2 East, P. C. 652; 12 Coke, 106, Frazier's note; Guthrie v. Weaver, 1 Mo. App. 136; Snyder v. Snyder, 60 How. Pr. 368; Pierce v. Swan Pt. Cemetery & M. Proprs. 10 R. I. 227, 242, 14 Am. Rep. 667.

How, then, can a surviving widow maintain such action, who is not next of kin, is not charged with with the burial or burial expenses, and has no right or control over the body of her deceased husband after burial?

16 Am. & Eng. Encyclop. Law, p. 704, and cases cited: Wynkoop v. Wynkoop, supra; Minn. Gen. Stat. chap. 46, § 3, subsecs. 9, 10, and § 7, chap. 51, §3, subsecs. 1, 2.

To entitle one to bring an action for an injury to any specific object or thing, he must have a property therein absolute or qualified. If he has no such property, he can have no cause of action, however flagrant or reprehensible the act complained of may be.

Bishop, Non-cont. Law, § 22; Grifith v. Charlotte, C. & A. R. Co. supra; 1 Addison, Torts, § 10.

In the absence of physical injury, injury to feelings and sensibilities is not an element of damages.

Keys v. Minneapolis & St. L. R. Co. 36 Minn. 293; Indianapolis & St. L. R. Co. v. Stables, 62 Ill. 313; Stone v. Evans, 32 Minn.

Widening of Beekman Street, which is reported in a note to 4 Bradf. 504, in which two of the conclusions are that the right to bury a corpse and to preserve its remains is a legal right which the courts of law will recognize and protect, and that such right, in the absence of any testamentary disposition, belongs exclusively to the next of kin. This report was afterward adopted by the court. It has been bitterly opposed. One recent writer in 10 Central Law Journal, p. 304, asserts that it is an obiter opinion full of errors and opposed to the long line of decisions which hold that there is no property in a corpse. It has, however, received recognition by the courts.

Bogert v. Indianapolis, 13 Ind. 138, holds that the right of burial belongs to the surviving relatives in the order of inheritance, and it cannot be taken out of their hands if they are able and willing to perform the duty. And in Renihan v. Wright, 9 L. R. A. 514, 125 Ind. 536, the court says that the right to the custody of the corpse and the right to superintend its burial do not belong to the executor or administrator but next of kin.

The conclusion reached by the learned referee in the Beekman Street Case seems to have thrown doubt upon the question as to whether the widow or next of kin have preference in the disposition of the body of the deceased husband.

Authors of notes and articles in legal periodicals have taken opposite sides upon the question arguing for the most part from the same premises. Francis King Carey, in 19 Am. Law Rev. 263, concludes that the husband and wife are required by law, and have the right, to bury each other.

John F. Baker in 10 Albany Law Journal, 71, concludes (1) that the right to protect and bury a corpse is in the executor; (2) in the absence of testamentary disposition it devolves upon the widow, husband, or next of kin;. (6) during her lifetime the widow has control of the place of interment of her deceased husband and so the husband has control over the remains of his wife.

the right to select and control the place of burial should belong to the heir, giving as his reasons that the heir might protect the remains from harm if they were buried upon his own land; while in case of the death of the widow the land upon which the burial took place would pass to strangers who would have no interest in protecting the re mains, and that the heir could then afford no protection.

Of the recent cases Secord v. Secor, 31 Leg. Int. 268, and Lester v. Lester, referred to by Mr. Moak, in his note to Re St. George in the East, 18 Eng. Rep. 427, both decided by the New York Supreme Court, state that the right to control the burial of the husband rests with the widow.

From the report of the Special Term decision in Secord v. Secor, 18 Abb. N. C. 78, note, it appears, however, that the controversy arose after burial when of course considerations arise different from those existing before burial.

Wynkoop v. Wynkoop, 42 Pa. 301, 82 Am. Dec. 506, seems to recognize the superior right of the widow prior to the interment.

In Snyder v. Snyder, 60 How. Pr. 368, the court states that 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 it rests exclusively with the next of kin can hardly be considered as a judicial conclusion of the right of the widow, that in case of contention the question must be solved upon equitable grounds that to lay down the inflexible rule that the widow is to be preferred to the children must sometimes result in great harshness and outrage, and conclude that, under the circumstances of that case, the claim of the son should be preferred to that of the widow.

In States where the first right to administer upon the deceased husband's property rests with the widow, it would seem that under the authorities cited above she would have the right and duty to control the burial.

For a very full index to the text-books and maga

Mr. W. H. Winters, assistant librarian of the New York Law Institute, in 18 Abb. N. C. 75. H. P. F.

person, is the right of possession of the body by the next of kin for the purposes of burial only. That right it is not claimed by the plaintiff, has been interfered with by defend

ants.

5 Am. &. Eng. Encyclop. Law, 115, and

note.

The rule of injuria sine damno applies with full force to this case.

1 Sedgw. Dam. 40; Hutchins v. Hutchins, 7 Hill, 104; Sroan v. Tappan, 5 Cush. 104; Cook v. Cook, 100 Mass. 194.

No value can be placed on mental pain and anxiety, and therefore courts will not attempt to redress such injuries.

Lynch v. Knight, 9 H. L. Cas. 577, 598; Hutchins v. St. Paul M. & M. R. Co. 44 Minn. 5; Hyatt v. Adams, 16 Mich. 197.

Messrs. Arctander & Arctander, for respondent:

As to whether or not there can be any property right in a dead body, and if there is such a right in whom it would rest, see article by Mr. Francis King Carey, on the Disposition of the Body after Death, found in 19 Am. Law Rev. 251; also article on the Ownership of a Corpse before Burial, by R. S. Guernsey, in 10 Cent. L. J. 303, 325.

The bodies of the dead belong to the surviving relations, in the order of inheritance, as property, and they have the right to dispose of them as such.

Bogert v. Indianapolis, 13 Ind. 134. See also Pierce v. Swan Pt. Cemetery & M. Proprs. 10 R. I. 237, 238, 14 Am. Rep. 667.

A surviving wife or husband has the right of burial, and in fact the duty of burial is thrown upon her or him, as the case may be, and where there is no expressed wish of the testator as to the disposition of the remains, the wishes of the surviving husband or widow will control against the next of kin even.

Durell v. Hayward, 9 Gray, 248, 69 Am. Dec. 284; Wynkoop v. Wynkoop, 42 Pa. 293, 82 Am. Dec. 506; Secord v. Secor, 31 Leg. Int. 268; Ambrose v. Kerrison, 10 C. B. 776; Chapple v. Cooper, 13 Mees. & W. 259; Jenkins v. Tucker, 1 H. Bl. 91; 4 Am. Law Times, 127.

We take issue with the statement that injury to the feelings and mental anguish and distress will not support an action for damages independent of an actual bodily injury to the person and property.

5th article on Injury to the Feelings, in Thompson's Law of Electricity, pp. 369-389.

The Supreme Courts of Texas, Tennessee, Alabama, Indiana, North Carolina and Kentucky and several federal courts have recently held that damages may be given in an action against a telegraph company for the failure to transmit and deliver a telegram, where the only element of damages consists in injury to the feelings, and where there is no element of physical suffering or pecuniary loss.

Stuart v. Western U. Teleg. Co. 66 Tex. 580, 59 Am. Rep. 623; Gulf, C. & S. F. R. Co. v. Wilson, 69 Tex. 739: Western U. Teleg. Co. v. Cooper, 71 Tex. 507; Western U. Teleg. Co. v. Broesche, 72 Tex. 654; Western U. Teleg. Co. v. Simpson, 73 Tex. 423; Western U. Teleg. Co. v. Adams, 75 Tex. 531; Wadsworth v. Western U. Teleg. Co. 86 Tenn. 695; Reese v.

294; Beasley v. Western U. Teleg. Co. 39 Fed. Rep. 181; Western U. Teleg. Co. v. Henderson, 87 Ala. 510; Thompson v. Western U. Teleg. Co. 106 N. C. 549; Youngv. Western U. Teleg. Co. 107 N. C. 370; Thompson v. Western U. Teleg. Co. 107 N. C. 449; Chapman v. Western U. Teleg. Co. (Ky.) June 14, 1890.

Mitchell, J., delivered the opinion of the court:

This was an action for damages for the unlawful mutilation and dissection of the body of plaintiff's deceased husband. The complaint alleges that she was the person charged with the burial of the body, and entitled to the exclusive charge and control of the same. The only damages alleged are mental suffering and nervous shock. A demurrer to the complaint, as not stating a cause of action, was overruled, and the defendant appealed.

The contentions of defendant may be resolved into two propositions: First, That the widow has no legal interest in or right to the body of her deceased husband, so as to enable her to maintain an action for damages for its mutilation or disturbance; that if anyone can maintain such an action, it is the personal representative. Second, That a dead body is not property, and that mental anguish and injury to the feelings, independent of any actual tangible injury to person or property, constitute no ground of action. Time will not permit, and the occasion does not require, us to enter into any extended discussion of the history of the law, civil, common, or ecclesiastical, of burial and the disposition of the body after death. A quite full and interesting discussion of the subject will be found in the report of the referee (Hon. S. B. Ruggles) in Re Beekman Street, 4 Bradf. 503. See also Pierce v. Swan Pt. Cemetery & M. Proprs. 10 R. I. 227, 14 Am. Rep. 667; 19 Am. L. Rev. 251.

Upon the questions who has the right to the custody of a dead body for the purpose of burial, and what remedies such person has to protect that right, the English common-law authorities are not very helpful or particularly in point, for the reason that from a very early date in that country the ecclesiastical courts assumed exclusive jurisdiction of such matters. It is easy to see, therefore, why the commonlaw in its early stages refused to recognize the idea of property in a corpse, and treated it as belonging to no one unless it was the church. The repudiation of the ecclesiastical law and of ecclesiastical courts by the American colonies left the temporal courts the sole protector of the dead and of the living in their dead. Inclined to follow the precedents of the English common-law, these courts were at first slow to realize the changed condition of things, and the consequent necessity that they should take cognizance of these matters and administer remedies as in other analogous cases. has been accomplished by a process of gradual development, and all courts now concur in holding that the right to the possession of a dead body for the purposes of decent burial belongs to those most intimately and closely connected with the deceased by domestic ties, and that this is a right which the law will recogInize and protect. The general, if not univer

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