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latter was entitled to impose a condition on the widow's right to erect a monument to her husband's memory, that she should also place the names of her father and mother on the monument.

4. SAME-MONUMENT-OWNERSHIP.

Title to a monument erected by an administratrix out of the proceeds of the estate was not in the distributees to the extent of their distributive shares of the estate, but in the administratrix during her life, and then in the heirs.

Appeal from Superior Court.

Bill by James McGann and others against Mary A. McGann, as administratrix, and others. From a decree dismissing the bill, complainants appeal. Affirmed.

See 58 Atl. 458.

Argued before DOUGLAS, C. J., DUBOIS, BLODGETT, JOHNSON, and PARKHURST,

JJ.

Charles E. Gorman and Joseph J. Cunningham, for appellants. John W. Hogan and Philip S. Knauer, for respondents.

PARKHURST, J. This is a bill in equity brought by James McGann and three others, being two brothers and two sisters of Michael J. McGann, late of Providence, deceased; the four complainants being 4 out of 10 heirs at law and distributees of the estate of said Michael J. McGann, who died without issue. The defendants are Mary A. McGann, the widow and administratrix of Michael J. McGann, and Bernard McGovern, who was made a party defendant on his own application as being a party interested in the cause. The gravamen of the bill is that the defendant Mary A. McGann, having been duly appointed administratrix of the estate of MIchael J. McGann, her husband, and having been, by decree of the municipal court of Providence, dated March 25, 1902, "permitted to expend a sum not exceeding $700 in the erection of a monument at the grave of said Michael J. McGann," proceeded thereafter to erect a monument at the grave of said Michael J. McGann, having inscribed on one side thereof the name of said Michael J. McGann, and on the other side the names of Bernard and Alice McGovern; neither of said McGoverns being relatives of the complainants or of said Michael J. McGann, nor having contributed to the erection of said monument. The complainants claim that they have contributed to the erection of said monument by reason of the fact that it was paid for with money of the estate of which they would have been entitled to their distributive shares if it had not been so expended; that they consented to the entry of said decree "with the express understanding that said monument was to be erected, dedicated, and inscribed to perpetuate the memory of Michael J. McGann and his memory exclusively:" that they have requested the defendant Mary A. McGann "to remove and erase said names of Bernard and Alice McGovern from said monument," and that she has ignored their request; and they pray that Mary A.

McGann may be restrained by injunction from keeping and maintaining said names of Bernard and Alice McGovern upon said monument, and may be ordered and decreed to remove said names from said monument.

It appears by the answers, which are fully supported by the testimony in the cause, that there was no such express understanding between the parties as set forth in the bill, and "no express understanding of any kind with the complainants or any of them regarding the inscriptions or design of said monument;" that Michael J. McGann was buried in a burial lot held by Bernard McGovern in St. Francis Cemetery, in accordance with his desire expressed prior to his death; also in accordance with the choice, request, and desire of his wife; with the consent of Bernard McGovern, and without opposition or objection on the part of the complainants or heirs; that the widow, Mary A. McGann, is the daughter of Bernard and Alice McGovern; that the most affectionate relations always existed between the deceased Michael J. McGann and said Alice and Bernard McGovern; that Alice McGovern, the wife of Bernard, had died and been interred in said burial lot about six months prior to the death of Michael J. McGann; that Bernard McGovern had intended to erect a family monument to his wife and himself, In said lot (the lot being called a "six-grave lot," and being 18 feet long by 10 feet wide); and that when Mrs. McGann proposed to erect the monument at the grave of her husband upon said lot, in accordance with the decree of the municipal court, it was objected by Mr. McGovern that the monument as designed was of such size that it would be impracticable to so erect it without interference with the rights and intentions of him, the said McGovern, to erect a monument on his lot as he had intended; that therefore Mrs. McGann, "desiring to properly perpetuate the memory of her said deceased husband, and having in mind the affectionate relations that had always existed between her late husband and her father and mother, then and there offered to and agreed with said Bernard McGovern that if he would consent to the erection of said monument as designed that she would have placed and inscribed thereon the names of Alice McGovern and Bernard McGovern." The names were so inscribed, and the monument was placed in accordance with such agreement.

Mrs. McGann claims by her answer that "if she is compelled to remove from said monument the said names of Alice and Bernard McGovern, that she will thereby violate her agreement with said Bernard McGovern, and entitle him to have said monument removed from said lot, and the same will thereby become a total loss to the estate and to said heirs and your respondent." Bernard McGovern by his answer claims "that if the said Mary A. McGann is permitted or compelled to remove the names of Alice Mc

Govern and Bernard McGovern from said monument she will thereby violate the aforesaid agreement," and prays, by way of crossrelief, "that his rights as owner and holder of the title to said lot, and under and by virtue of said agreement with said Mary A. McGann, may be protected against infringement, and that this honorable court may enter a decree denying the prayer of the complainants and preventing the removal of the names of Alice McGovern and Bernard McGovern from said monument, and may grant such other and further relief," etc.

It also appears that while said monument was in process of construction, and before it was actually erected on said lot, the defendant, Mary A. McGann, as administratrix, having ascertained the balance in her hands for distribution, made settlement with all of the complainants and other heirs and distributees, paid over the moneys due to them and took their general release in the usual form, whereby they released said Mary A. McGann as administratrix and individually from all and all manner of actions, causes of actions, debts, dues, claims, and demands both in law and in equity; and the defendant Mary A. McGann sets up this release by way of plea in her answer. This release was not delivered until December 9, 1902, and at that time the monument, although not actually erected on the burial lot, had been completed, with all its inscriptions, and was in the yard of the maker, where it was open to inspection, and there was no concealment or attempt at concealment on the part of the defendants as to the nature of the inscriptions. It is to be noted that no one of the complainants appears as a witness in support of any of the allegations of the bill, and there is no attempt to prove that there was any express agreement or understanding between them and the widow as to the monument or its inscriptions, or that there was any injury to their feelings by reason thereof, or that there was any "hostility" or "antagonism" displayed by the widow towards the complainants, as alleged in the bill. Under all the circumstances of this case, we are of the opinion that the complainants have failed to show any ground for the relief prayed for.

It has been decided in this state that, "as a general rule, the primary right to control the burial of a husband should be with the widow, in preference to the next of kin," for the same reasons, and on the same grounds that in case of the death of a wife such right of control belongs to the husband, under ordinary circumstances. Hackett v. Hackett, 18 R. I. 155, 158, 26 Atl. 42, 19 L. R. A. 558, 49 Am. St. Rep. 762. If, then, the widow has such right of control, and, being also administratrix, has obtained authority to expend the money of the estate for erecting a monument, she must, as a matter of course, have the right to erect such a monument as she chooses, within the limits of expenditure authorized, with such inscription thereon as she may

deem appropriate, subject to such reasonable rules and regulations as may be imposed by the authorities in control of the cemetery; subject also to the rights of the owner of the lot, where, as in this case, the interment is made in a lot owned by a third person; and further subject to such reasonable control, regarding the character of the monument and its inscriptions, as shall prevent any such infraction of those recognized rules of propriety as would shock the sense of the community or show disrespect or contempt for the dead, or in any real sense do injury to the feelings of the surviving relatives. We think that a court of equity could and should exercise control, in its discretion, in such matters upon a proper case. This is simply a logical extension of the principles held in regard to the burial of the dead, and the protection of the rights of parties interested therein, as set forth in Pierce v. Prop'rs of Swan Point Cemetery, 10 R. I. 227, 14 Am. Rep. 667; Hackett v. Hackett, 18 R. I. 155, 26 Atl. 42, 19 L. R. A. 558, 49 Am. St. Rep. 762; Weld v. Walker, 130 Mass. 422, 39 Am. Rep. 465; Fox v. Gordon, 16 Phila. (Pa.) 185; Thompson v. Deeds, 93 Iowa, 228, 61 N. W. 842, 35 L. R. A. 56; and the numerous cases cited therein. But in this case we do not find that the widow has done anything of which the parties can properly complain. She has erected a monument, with a proper inscription, to her husband's memory; and the only complaint is that she has placed upon the same monument the name of her mother, who was buried in the lot prior to the husband's decease, and the name of her father, who owns the lot and expects to be buried therein when he dies. We are of the opinion that it was entirely proper for the widow, under the circumstances, to so place the names of her father and mother upon said monument. It was done in pursuance of an agreement with her father, in consideration of his permission to erect such a monument as she desired. and such as would, by reason of its size and location, prevent him from erecting his own monument on his lot to himself and his wife. He had a perfect right to impose such a condition, and it could not be regarded as, in any sense, a disrespect of or contempt for the dead, in view of the request of the deceased to be buried in said lot, and in view of the affectionate relations which always subsisted between the deceased and his widow's father and mother. The right of the widow to erect a monument to her husband, who was buried at his own request by the side of a former wife in a lot owned by his daughter who was born to him by such former wife, was expressly recognized in Thompson v. Deeds, 93 Iowa, 228, 61 N. W. 842, 35 L. R. A. 56, but was also made expressly subject to reasonable conditions imposed for the benefit of the lot owner "as to the size and location of the monument, having in mind the plaintiff's right to occupy and use the rest of the lot." Restrictions were also imposed as to inscrip

tions, in accordance with the wishes of the lot owner.

In our opinion the claim set up by the complainants, that by reason of the use of the money of the estate in the erection of the monument they were contributors to the cost of the monument and thereby became interested as part owners of the same, and so entitled to relief, is untenable. If the legal title to the monument were to be determined according to the doctrine of contribution contended for by the complainant's counsel, the widow would own one-half and each of the complainants would own onetwentieth; so that the total representation of interests on behalf of the complainants would be four-twentieths, or one-fifth, as against one-half represented by the widow; and the widow would appear to have the superior right. It will at once appear that any such principle of ownership, if recognized by law, would be likely to lead to most unseemly wrangles and to suits of various Kinds of very doubtful solution by the courts. We find no case in which such principle of ownership has ever been recognized. On the contrary, it has been the recognized doctrine of the English law that property in monuments and gravestones remains in the executor, or in the person who erects them (if other than the executor), during life; and after decease of executor (or other person erecting), then in the heirs. 3 Coke's Inst. 202; 1 Burn's Eccl. Law, p. 372, § 21; Spooner v. Brewster, 3 Bing. 136. And the same doctrine is recognized in this country in Re Brick Presbyterian Church, 3 Edw. Ch. (N. Y.) 155, 168; Mitchell v. Thorne, 134 N. Y. 536, 539, 32 N. E. 10, 30 Am. St. Rep. 699, and cases cited.

But courts of equity deal with matters of this kind upon broad grounds, and are not governed by rules which grow out of the ownership of property. As was said by the court in Fox v. Gordon, 16 Phila. (Pa.) 185: "Questions which relate to the custody and disposal of the remains of the dead do not depend upon the principles which regulate the possession and ownership of property, but upon considerations arising partly out of the domestic relations, the duties and obligations which spring from family relationship and the ties of blood; partly out of the sentiment so universal among all civilized nations, ancient and modern, that the dead should repose in some spot where they will be secure from profanation; partly out of what is demanded by society for the preservation of the public health, morality, and decency, and partly often out of what is required by a proper respect for and observance of the wishes of the departed themselves. When we speak therefore of the right and obligation to select the place and direct the manner of the burial of a relative or friend, we do not speak of a right of property, but of rights and duties recognized by the laws and usages of society, as growing

out of the natural relations of human beings to each other and the divine and human laws which bind society together."

In our view of the case, it becomes unnecessary to consider the effect of the release given by the complainants, and others to the administratrix upon the settlement of the estate, since in our opinion the rights of the parties would have been the same, under the circumstances, if the estate had not been settled and no release had been given. We think, furthermore, that the interests of the defendant Bernard McGovern will be sufficiently protected, in view of the foregoing opinion, by the dismissal of the bill, and that no decree for cross-relief need be entered under the prayers contained in his answer. The decree of the superior court is affirmed, and the appeal is dismissed.

(28 R. I. 137)

In re CROSSWELL'S PETITION. (Supreme Court of Rhode Island. Jan. 23, 1907.)

1. INSANE PERSONS- COMMITMENT - CERTIFICATE.

Gen. Laws 1896. c. 82, § 11, provides that insane persons may be removed to and placed in Butler Hospital for the Insane, on a certificate from two practicing physicians of good standing, known to the superintendent of the hospital to be such, that such person is insane: Held, that such certificate may be signed by physicians practicing without the state, who are not officers of an institution for the care of the insane, and need not be sworn to. 2. SAME-REMOVAL FROM ANOTHER HOSPITAL. Under such act, it is not necessary that the patient should be removed from another hospital in order to justify his restraint in the hospital in question.

3. GUARDIAN AND WARD RELATIONSHIP ESTABLISHMENT-FOREIGN DECISIONS.

The relation of guardian and ward when legally established by a court of competent authority, having jurisdiction of the person of the ward, will in general be recognized by courts in other jurisdictions into which the ward may be brought, who have occasion to examine questions relating to the custody of the ward's per

son.

[Ed. Note. For cases in point, see Cent. Dig. vol. 24, Guardian and Ward, § 559.]

4. INSANE PERSONS INCARCERATION-RESIDENCE.

Gen. Laws 1896, c. 82, § 11, provides that an insane person may be removed to and placed in the Butler Hospital by their parents or parent or guardians, if any, there be, and if not, by their relatives and friends on a certificate from two practicing physicians in good standing. etc. Held, that the term "guardian" included those of foreign, as well as domestic, appointment, so that a nonresident insane person might be properly confined in such hospital on the request of his nonresident guardian. 5. CONSTITUTIONAL LAW DUE PROCESS OF LAW-INCARCERATION OF INSANE PERSONS.

Gen. Laws 1896, c. 82, § 11. authorizes the restraint of insane persons in the Butler Hospital by authority of their parents, or parent, or guardians, if they have any, and, if not, by their relatives and friends; and section 12 declares that any person committed to the charge of such institution may be received and detained by the superintendent, etc.. until discharged in one of the modes provided. Section 19, as amended by Court & Practice Act 1905, § 1112. requires the court, on an application for habeas

corpus, to inquire and determine as to the sanity or insanity, or the necessity of restraint of the person confined at the time such application was made, and provides for the trial of the issue to a jury in the discretion of the court, declaring that if it appears on the verdict, or it is the opinion of the court, that the person so confined is not insane, or that he is not dangerous to himself or others, he shall be discharged from confinement. Held, that such act was not unconstitutional, as depriving insane persons of their liberty without due process of law.

Petition by Simon G. Crosswell for a writ of habeas corpus to obtain his discharge from the Butler Hospital for the Insane. Petition dismissed.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

Amasa M. Eaton and Simon G. Croswell, for petitioner. Gardner, Pirce & Thornley, for Butler Hospital.

DOUGLAS, C. J. This proceeding is a petition for a writ of habeas corpus and for discharge from custody of a patient confined against his will in the Butler Hospital.

Citation was issued to show cause why the writ should not issue, and a hearing was had before the court at which the petitioner was present with experienced counsel appointed by the court, and at which he and his witnesses were heard. Subsequently briefs were filed by him, and by his counsel, and by counsel representing the respondent. All parties have been given full opportunity to present their evidence and arguments. We find as matter of fact, upon the concurrent testimony of all the expert witnesses, that the petitioner is insane; and upon uncontradicted evidence, that his malady is in its nature progressive, and that it is liable at any time, without warning, to induce in him acts of violence to himself or others. In these circumstances it is clear that for his own good, as well as for the protection of the community, he requires restraint and medical care such as the Butler Hospital affords and for the purpose of furnishing which it is incorporated and authorized by law to receive patients.

The petitioner is a citizen of Massachusetts, and was brought from that state, and, by order of two of its trustees, admitted to the Butler Hospital upon the following certificate and application presented to the superintendent:

"Certificate and Application.

"We hereby certify that Simon G. Crosswell, of Cambridge, Mass., is insane.

"E. Stanley Abbott, M. D.,
"Guy G. Fernald, M. D.,
"Physicians.

"Date, 29 April, 1905.

"I request that the above-named insane person may be admitted as a patient into the Butler Hospital.

"Mary C. Crosswell, Guardian."

The signers of the certificate were known to the superintendent, as he testifies, to be practicing physicians in good standing. It appeared, also, by their own depositions, taken on behalf of the petitioner, that they are salaried officials of the McLean Hospital, living in one of the hospital buildings and exclusively occupied in attendance upon the patients of that institution and medical practice therein. The signer of the application is sister and the nearest relative of the petitioner, and on May 13, 1903, both of his parents having died, she was appointed guardian of the petitioner, as an insane person, by the probate court of Middlesex county, Mass., where he is domiciled.

The commitment and reception of the petitioner at the hospital were under the provisions of Gen. Laws 1896, c. 82, §§ 11, 12, as follows:

"Sec. 11. Insane persons may be removed to and placed in said Butler Hospital, or in any other curative hospital for the insane of good repute in this state, managed under the supervision of a board of officers appointed under the authority of this state, by their parents, or parent, or guardians, if any they have, and if not, by their relatives and friends; but the superintendent of said hospital shall not receive any person into his custody in such case without a certificate from two practicing physicians of good star ing, known to him as such, that such person is insane, and the state shall not be liable for the support of any such person.

"Sec. 12. Any person committed to the charge of any of said institutions for the insane as aforesaid, in either of the modes hereinbefore prescribed, may be lawfully received and detained in said institution by the superintendent thereof, and by his keepers and servants, until discharged in one of the modes herein provided; and neither the superintendent of such institution, his keepers or servants, nor the trustees or agents of the same, shall be liable, civilly or criminally, for receiving or detaining any person so committed or detained."

The statute does not require that the certificate mentioned in section 11 should be sworn to or that it should be signed by physicians practicing in this state, or that they should not be officers of an institution for the care of the insane, or that the removal shall be from another hospital. These objections, urged against the validity of the certificate in the present case, have no basis in the statute. The certificate fulfilled the requirements of the law. The power given to parents or guardians, so far as it relates to minors or wards, is only a recognition of the power which nature gives to the one class and the courts have bestowed upon the other. A parent, without this statute, may abridge the liberty of his child, may confine him in a school, or workshop, or hospital, may determine his place of abode or occupation, according to the parent's judgment, consulting

the interests of the child, not its desire; and a guardian, wherever his authority is recognized, has similar rights over his ward. While it is true that an appointment by the court of any state has legal and imperative effect only within the jurisdiction of the state, it is also true that the relation of guardian and ward, when legally established by a court of competent authority having jurisdiction of the person of the ward, will generally be recognized by courts in other jurisdictions, into which the ward may be brought, who have occasion to examine questions relating to the custody of the ward's person. In such cases the court will make such order as is apparently for the benefit of the ward, and will remand him to the custody of the foreign guardian unless it sees that such control is improper. 1 Wharton, Con. Laws (Sd Ed.) 263, 263a; State ex rel. Raymond v. Lawrence, 86 Minn. 310, 90 N. W. 769, 58 L. R. A. 931; Nugent v. Vetzera, L. R. 2 Eq. 704; Townsend v. Kendall, 4 Minn. 412 (Gil. 315) 77 Am. Dec. 534; Ex parte Dawson, 5 Bradf. (N. Y.) 130; Warren v. Hofer, 13 Ind. 167; Re Parker, 39 La. Ann. 333, 1 South. 891; Vick v. Volz, 47 La. Ann. 42, 16 South. 568; Taylor v. Nichols, 86 Tenn. 32, 5 S. W. 436.

We

Our statutes expressly confer upon nonresident guardians certain powers with regard to property of their wards which may be in this state. Gen. Laws 1896, c. 196, §§ 41, 42, re-enacted in Court & Practice Act 1905, §§ 1075, 1076, construed in Mitchell v. People's Savings Bank, 20 R. I. 502, 40 Atl. 502. think the statute now under consideration should be held to include in the word "guardian" those of foreign as well as domestic appointment. Many of the patients in the Butler Hospital are not citizens of Rhode Island, and we cannot narrow the construction of so comprehensive a statute, and construe it so as to require in many cases the appointment of a local guardian before a person needing the care of this institution could be committed to it. But the person who signed the application in this case is the sister of the petitioner, and in either case the requirement of the law was satisfied.

The important question raised by counsel for the petitioner is whether the statute itself is in violation of the clause of the fourteenth amendment to the Constitution of the United States which reads:. "Nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." This question came before the court in Doyle, Petitioner, 16 R. I. 537, 18 Atl. 159, 5 L. R. A. 359, 27 Am. St. Rep. 759, upon a commitment under Pub. St. 1882, c. 74, §§ 11, 12, which are substantially the same as the sections of the general laws, now under discussion. The petition in that case was brought by the guardian of a patient in the Butler Hospital who had been committed thereto by his wife

before the guardian was appointed, and the provisions of these sections were held to be unconstitutional. July 23, 1889, 24 days after the delivery of the opinion in that case, the General Assembly, recognizing the necessity of providing for the restraint of the insane, passed an act in amendment of said chapter 74 (Pub. Laws 1889, p. 156, c. 819), intended to obviate the objections to the validity of chapter 74. Chapter 819 was further amended April 22, 1891, by chapter 935, p. 35, Pub. Laws 1891, and the changes in and additions to the law as it stood at the time of the decision, which were made by these statutes, with the exception of the right of trial by jury given by chapter 935, are substantially embodied in the statutes as they stand to-day.

The objections to the validity of the statute, as it was in 1889, are thus stated by the court: "The peculiarity of our statute is this: That, if said sections 11 and 12 be constitutional, any person committed under section 11 'may be lawfully received and detained' under section 12 until he is discharged in one of the modes provided by said chapter 74. He cannot be discharged on writ of habeas corpus if the sections be constitutional, since the proper function of the writ of habeas corpus is simply to discharge persons who are unlawfully restrained. The modes of discharge provided by chapter 74 are not modes which can be initiated or pursued by the person confined, but depend on the will and action of others. The persons confined may be removed from the institution where they are confined by the persons who have placed them there, or by the persons who have voluntarily become liable for the expenses of keeping them there, section 13; or the superintendent may discharge them on the application of any relative or friend, with the written approval of the visiting committee of the trustees, section 14. The only other mode is by a commission, appointed by a justice of the Supreme Court, to inquire into the question of sanity and report thereon, and by the action of the justice on such report, sections 15, 16, 17, 18, and 29. Such commission, however, is to be appointed, not at the instance of the person confined, but only on application by some other person, who, unless applying under section 29, is required, before the appointment, to pay or secure the payment of the expenses, which are sometimes onerous. And, moreover, it is provided in express terms that no notice of the pendency of the inquiry before the commission shall be served on the person confined, and that such person shall not have the right to confer with counsel, to produce evidence, or be present at the inquisition. The report of such commission may be more worthy of credit than the mere certificate of two physicians; but, inasmuch as the person confined cannot himself initiate the proceeding, or take part in it in any way when initiated by another, we

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