church) for his child, if he had the means, Reg. v. Vann, 2 Den. Crown Cas. 325, 15 Jur. 1090. A householder, even, in whose house a poor person died, was, if no other person undertook the duty, bound to inter the body decently. And a stranger might enforce payment of the expense of burial out of the effects of the deceased, and was not liable as executor de son tort. Tugwell v. Heyman, 3 Camp. 298, note. The right of the parishioner to burial, said Lord Stowell in Gilbert v. Buzzard, 3 Phillim. Ecc. 350, "strictly taken, is to be returned to his parent earth for dissolution, and to be carried there for that purpose in a decent and inoffensive manner." In his third Institute (page 203), Lord Coke says: "In every sepulchre that hath a monument, two things are to be considered, viz. the monument and the sepulchre or burial of the dead. The burial of the cadaver (that is, caro data vermis) is nullius in bonis, and belongs to ecclesiastical cognizance; but, as to the monument, action is given, as hath been said, at the common law, for the defacing thereof." And in Foster v. Dodd, 8 Best & S. 854, Byles, J., said: "A dead body by law belongs to no one, and is therefore under the protection of the public. If it lies in consecrated ground, the ecclesiastical law will interpose for its protection; but, whether in ground consecrated or unconsecrated, indignities offered to human remains, in improperly or indecently disinterring them, are the ground of an indictment." In England a body, once buried, once buried, could only be removed by order of the coroner for the purposes of an inquisition, or by a faculty (special dispensation) granted by the ordinary in his consistory court, or by license of one of the secretaries of state. Little. Burial. The granting or revocation of such a faculty is a judicial proceeding. In re Pope, 5 Eng. Law & Eq. 585; Vestry of St. Pancras v. Vicar and Church Wardens of Parish of St. Martin, 6 Jur. (N. S.) 540. As in this country there is no ecclesiastical jurisdiction, "the remedy," says Judge Story in Beatty v. Kurtz, 2 Pet. 566, "must be sought, if at all, in the protecting power of a court of chancery, operating by injunction to preserve the repose of the ashes of the dead and the religious susceptibilities of the living." Accordingly.it has been uniformly held in this country that, where questions involving the care and custody of a dead body arise, the litigation is necessarily in equity.

With these preliminary observations, I now come to the question at issue: Has the husband such a right to his wife's remains or to their custody that he can prevent the complainant from reinterring them in the plot which has been prepared for them? That he has no property right in them is manifest from the foregoing cases, which declare that there can be no property in a dead body. Has he, then, a right to their custody? A right to the exclusive possession of a material thing, such as a dead body is, for an indefinite period, would be necessarily

a property right, and so I think it may be safely asserted that the husband has no such right. What, then, is his right? It is said in Weld v. Walker, 130 Mass. 422, that because the husband's relationship to his wife is nearer than that of the next of kin, and because he is charged with the duty of burying his wife, it is his right to determine the place of her burial, although it is cautiously added: "It may be that the right of the husband is not an absolute right. If he should act in wanton disregard of the rights of the other relatives, or to the feelings of the community, perhaps a court of equity would not aid him." Accordingly it has been held in a number of cases that, where the body is once buried in a suitable place, the surviving husband or wife is not, in general, at liberty to remove it, against the wishes of the relatives in whose vault or burial place it has been interred. Wynkoop V Wynkoop, 42 Pa. St. 293; Wynkoop, 42 Pa. St. 293; Pierce v. Pr. prietors, 10 R. I. 227; Guthrie v. Weaver, 1 Mo. App. 136; Secord v. Secor, 18 Abb. N. C. 78; Peters v. Peters, 43 N. J. Eq. 140, 10 Atl. 742. If in the case at bar the wife's body had, with the husband's consent, been interred in the lot in which it now lies, and her father and mother had not exchanged this lot for another, it is entirely clear that he could not have removed it. The peculiarity of the case consists in this, viz. that by reason of the action of the wife's parents it has become necessary to take it up and rebury it. An examination of the authorities convinces me that what we are really dealing with in cases of this sort is a question of duty, rather than of right, strictly so called. In his character of administrator, if he sustain that character, the husband is by the law of the land charged with the duty of burial, just as an executor is; and, in his character of husband, he, first of all, because he is nearest to her, is by the law of nature charged with the same duty. As incidental to this duty, and in order that it may be properly performed, he is intrusted with the custody of the body until it is finally deposited in its permanent resting place. In England the duty, at least in former centuries, would have been discharged by seeing that his wife's remains were deposited in the church or churchyard of the parish in which she had lived. Once buried there, he had no more right of control over them than the merest stranger. Neither husband nor relatives could have disinterred the body without obtaining a faculty from the ordinary. Not even the parson in whom the freehold was vested could have authorized a removal. It was an indictable offense for a child, even, to remove the body of a parent from its place of interment. Earl, J., says in Reg. v. Sharpe, 40 Eng. Law & Eq. 582, "There is no authority for saying that relationship will justify the taking of a corpse away from the grave where it had been buried." Nothing short of a faculty granted

would have sufficed, and this faculty would have been conceded, not on the idea of right in the applicant, but of discretion in the ordinary, called into exercise by some reason of family sentiment or public convenience. Rector of St. Michael Bassishaw v. Parishioners [1893] Prob. Div. 233, 244; Vicar of St. Botolph v. Parishioners [1892] Prob. Div. 161; In re Kerr [1894] Prob. Div. 284.

The status of the present case is this: The title to the cemetery is vested in Bishop Wigger. The certificate received by the so-called lot owner is merely that T. has paid $"for one plot [describing it] in the cemetery of the Holy Name, to be used for burial purposes only, subject to the regulations of the cemetery and the rules of the Catholic Church in this diocese." This certificate is signed, not by the bishop, but by the secretary of the cemetery. The legal situation, then, is that the bishop holds the land in trust for the holders of certificates, for burial purposes, just as the parson in England held the freehold of the churchyard upon a similar, though somewhat broader, trust. "The fee of a church or churchyard," says the chancellor of the consistory court of London in Vicar of St. Botolph v. Parishioners [1892] Prob. Div. 167, "is by law in perpetual abeyance, whilst the freehold of the chancel is vested in the rector, and of the church and churchyard in the incumbent, but in both cases for the use of the parishioners. The final control of the church and chancel and of the churchyard is vested in the chancellor, as ordinary for this purpose." The use is a charitable use. Newark v. Stockton, 44 N. J. Eq. 180, 14 Atl. 630. Bishop Wigger submits himself to the judgment of this court. When his authorized agent canceled the first certificate and issued a new one, he necessarily agreed that the body interred in the plot first purchased purchased should be removed to the new plot. Is the husband in a position to prevent the removal? If I am right in the view I have taken, namely, that he is not vested with a right, but charged with a duty, it is apparent that in designating his wife's father's plot as the final resting place of her remains, and in seeing that she was interred there, he did what would ordinarily amount to a complete performance of that duty. If, in consequence of the new situation, a new duty has arisen, he is in the performance of it, subject to the controlling power of this court as the successor of the ecclesiastical court. If nothing else appeared than that, for some reason or other, it was necessary to remove the body, then he, as husband and administrator, would, a controversy arising, be permitted to select another resting place. But there are two additional facts in the case at bar, which it seems to me make it the duty of the husband to allow his wife's body to be buried in the lot prepared for it. These facts are: First, his wife's request that she should be buried with her family, and his assent there

senting to the exchange of the lots, and in allowing the work upon the new plot to proceed without objection, at great expense to complainant. First, as to his wife's verbal request: If the husband had a legal right to his wife's remains, I cannot conceive how her verbal request could have any effect. In Williams v. Williams, 20 Ch. Div. 659, the court refused to give effect even to a testamentary direction relating to the disposition of testator's body. In many of the cases before cited, however, requests of this character have been allowed weight. This could only have been on the theory that they bore upon the question of duty. In re Kerr [1894] Prob. Div. 285, is a strong case of this kind. The deceased had expressed a wish that his body should be cremated, and application was made to the judge of the consistory court for a faculty to permit the remains, after cremation (a practice then entirely novel), to be placed in a niche of the wall of the Church of St. Saviours, in a sealed urn. Permission to put the urn in the wall was refused, but leave was granted to put it in consecrated ground under the floor. The judge said, "The court would not have been prepared to grant the faculty, had not Mr. Kerr, as deposed to by his widow, expressed during his life his wish that his body, after his death, should be cremated." Now, in the case at bar, we have not only proof of the wife's request, but of the husband's assent to it. Her request was, not that she should be buried in any particular plot, but in the plot in which her father and mother would be buried. It is perfectly plain, on the evidence, that it was a matter of perfect indifference to Mr. Moriarty, when the first plot was purchased, whether that particular plot was selected, or some other. If the plot subsequently acquired had then been brought to the attention of the parties, it would have been equally satisfactory to him. It was only because he subsequently quarreled with Mrs. Toppin, and, as he told Mr. Kelly, wished to put her to all the trouble he possibly could before he would allow her to remove the body, that he interfered to prevent the removal. I do not think that Mr. Moriarty was in good faith trying to perform a duty when he interfered. The substance of his consent was that his wife should repose by the side of her parents, and he gives no good reason for now withdrawing it. In the second place, it is shown, not only that he thus consented, but that he knew of the exchange of the lots, and of the work that was being done on the second lot, and that he made no objection until that work was completed. It is said by complainant's witnesses that he approved of the exchange. This he denies, but he admits that Kelly, the contractor, told him that they were going to put up the monument on the new lot, and have his wife's body removed there; and he testifies that he did not then object, because the contractor, whom he

had himself introduced to Mr. Toppin, begged him not to say anything about it, as it might interfere with his work under the contract. That the new plot is a suitable place in which to bury the body is not, and cannot be, questioned. It is one of the best in the cemetery. The complainants have, in their bill, offered to allow the defendant to repose beside his wife. The defendant has as yet acquired no plot in which to inter it. It seems therefore quite plain that the defendant's duty now requires him to allow his wife's body to be taken to the place provided for it. The complainants are entitled to an injunction.

VAN NOSTRAND v. BOARD OF DOMESTIC MISSIONS OF REFORMED CHURCH IN AMERICA.

(Court of Chancery of New Jersey. Oct. 23, 1899.)

WILLS-DESIGNATION OF LEGATEE-PAROL
TESTIMONY.

1. Where the description of a legatee is erroneous, but there is no doubt as to the person intended, the mistake will not defeat the bequest.

2. Parol testimony is admissible to explain the intent of a testator in making a bequest to the "Domestic Missionary Society," where there are a number of missionary societies to which such term might apply.

3. Testator made a bequest to the "Domestic Missionary Society." The draftsman of the will testified that testator's intention was to make the Board of Domestic Missions of the Reformed Church in America legatee. There was evidence that testator was a devoted member of the Reformed Church, and in referring to its board of domestic missions frequently spoke of it as the "Domestic Missionary Society." Held, that the Board of Domestic Missions of the Reformed Church in America was intended as legatee.

Bill by John Van Nostrand, executor, etc., against the Board of Domestic Missions of the Reformed Church in America, to get a construction of a will. Decree in favor of defendant.

This bill is filed to get a construction of the residuary clause in the will of Josiah Schenck. This clause is as follows: "All the rest, residue, and remainder of my estate I give and bequeath to the Domestic Missionary Society, to invest the said amount, whatever it may be, in government bonds, and the interest accruing thereon to appropriate to the use of said society." This residue is claimed by the Board of Domestic Missions of the Reformed Church in America. The extrinsic evidence in the case is that the testator was a devoted member of the Reformed Church; that he was greatly interested in domestic missions, in preference to foreign missions; that in conversations upon the subject of domestic missions he ordinarily spoke of the "Domestic Missionary Society" when speaking in reference to the Board of Domestic Missions of his church, and of the "Foreign Missionary Society" when speaking of the Board of Foreign Missions of his church. The draftsman of the

will also says that it was to the Board of Domestic Missions of the Reformed Church in America that he and testator, in their conversations before and at the time of the execution of the will, intended to give the legacy.

George E. Pace, for complainant. Alvah A. Clark and J. D. Bartine, for defendant.

REED, V. C. (after stating the facts). A. gift to a corporation by a misnomer is good, especially if for a charitable purpose.

ry, Trusts, § 730. In Wilson v. Squire, 1 Younge & C. Ch. 654, there was a bequest to the "London Orphan Society in the City Road." There was no society answering precisely this description, but there was a "London Orphan Asylum" at Clapton, and an "Orphan Working School" in the City Road. It was held that the legacy went to the latter. In Minot v. Boston Asylum, 7 Metc. (Mass.) 416, there was a gift to the "Boys' Asylum and Farm School." There was no association of a similar name except one incorporated under the name of the "Boston Asylum and Farm School for Indigent Boys." It was held that this association took. In Smith's Ex'x v. First Presbyterian Church, 26 N. J. Eq. 132, there was a gift to the "Blair Academy of Blairstown." There was an institution under the corporate name of the "Blair Presbyterian Academy." It was held that it took. The general rule enunciated in the last case was that, where the name or description of the legatee is erroneous, and there is no reasonable doubt as to the person who was intended to be named, the mistake will not defeat the bequest. The general rule is supported by the cases cited in the opinion delivered in the last case and by the text-books. See Theob. Wills (4th Ed.) 305. The evidence is that there was no other Domestic Missionary Society in the church of which the testator was a member but the Board of Domestic Missions of the Reformed Church in America. It is also in evidence that in his conversations with his pastor upon the subject of missions he was accustomed to allude familiarly to the two boards of foreign and domestic missions as the "Foreign Missionary Society" and the "Domestic Missionary Society." This evidence was competent, although there was no latent ambiguity; for, says Mr. Hawkins: "It is to be observed that evidence in the shape of sayings, etc., of the testator, may be in certain cases adduced to show that he habitually used certain words, even where the description is not equivocal, provided the sense thus sought to be put upon them does not contravene their ordinary and legitimate meaning; this being distinct from evidence adduced to show in what sense he used the words on the particular occasion of writing the will." Hawk. Wills, p. 10; Duke of Leeds v. Amherst, 9 Jur. 359; In re Feltham's Trusts, 1 Kay & J. 528. Among the things which may be shown in respect to the signification of words is the meaning which it can be conclusively shown that the parties were in the habit

of affixing to the words. Elph. Interp. Deeds, marg. p. 48. The society now claiming and the society described were both missionary societies, and both domestic missionary societies. If the Board of Domestic Missions of the Reformed Church in America was the only society of the kind, it is apparent that it was the one intended by the testator. But it is a matter of common knowledge that other church organizations have boards of foreign and domestic missions. Therefore the description may apply to them as well as to the defendant. The description thus becomes equivocal. In re Clergy Soc., 2 Kay & J. 615. This condition of affairs confers competency upon the parol testimony in respect to the expressed intent of the testator. Hawk. Wills, p. 8. The scrivener who drew the present will testifies that it was the intention of the testator before and at the date of the execution of the will to make the Board of Domestic Missions of the Reformed Church in America the legatee. Regarding the relations of the testator to this society, his habitual designation of it in his conversations as the "Domestic Missionary Society," and his expressed intent in respect to the beneficiary who was to take under his will, I have no doubt that the Board of Domestic Missions of the Reformed Church in America is the legatee. A decree will be accordingly advised.

McCOTTER v. TOWN COUNCIL OF NEW SHOREHAM.

(Supreme Court of Rhode Island. Oct. 4, 1899.) HIGHWAYS-INCOMPLETE APPEAL - FAILURE

OF APPEAL BOND TO REACH CLERK WITHIN PRESCRIBED PERIOD-NEW TRIAL. 1. Where an appeal bond, on appeal to the common pleas division from an order of a town council laying out a highway, fails to reach the clerk within the period prescribed by law, the appeal is incomplete.

2. Where the failure of an appeal bond, on appeal from an order of a town council laying out a highway, to reach the clerk within the period prescribed by law, is due to accident, the appellant's remedy is by petition for new trial under the statute.

Proceedings by the town council of New Shoreham to lay out a highway. From an order entered therein, William S. McCotter appealed to the common pleas division of the supreme court, which granted his petition removing the cause to the United States circuit court. Appellee petitions for a new trial. Granted.

Edwards & Angell, for appellant. C. E. Champlin, for appellee.

PER CURIAM. Our opinion is that, as the appeal bond failed to reach the clerk within the period prescribed by law, the appeal was not complete. As the failure was apparently due to accident, we think the appellant's remedy is by petition for new trial under the statute. We think that the order of removal made by the common pleas division was er

roneous. Appellee's petition for new trial granted, and case remitted to the common pleas division, with direction to vacate its order of removal and to dismiss the proceeding.

FARMINGTON SAV. BANK v. CURRAN et al.

(Supreme Court of Errors of Connecticut. Oct. 27, 1899.)

WILLS-ELECTION-RIGHTS OF DEVISEES. A testatrix devised specific parts of a tract of land, all of which it was supposed she owned, to her surviving children. After her death it was discovered that a part of it was owned by a deceased son, of whom the testatrix's surviving children were heirs. Knowing this, one of the devisees disposed of her interest in the tract under the will, which exceeded what she otherwise was entitled to claim; and after acquiring the equity of redemption in a sister's devise, which had been mortgaged in good faith and for value, she bought from the other children their claim therein as heirs of their deceased brother. Held, that she could not assert against the mortgage the claim which she had thus acquired by purchase and as one of her brother's heirs.

Appeal from superior court, Hartford county; John M. Thayer, Judge.

Suit by the Farmington Savings Bank against Bernard F. Curran and others to foreclose a mortgage. From a judgment in favor of plaintiff as to a part of the mortgaged premises only, it appeals. Reversed.

This was a complaint claiming to foreclose a certain mortgage deed given by the defendant B. F. Curran, as guardian to William J. Sergeant and Arthur F. Sergeant, minors, by authority of the court of probate, to the plaintiff, to secure a note of $2,200, with lawful accretions thereon. Catherine E. Curran, wife of Bernard F., is made the principal defendant, as the owner of the equity of redemption. The J. J. Eager Company is also made a defendant. It has a mortgage of the premises, subject to the mortgage to the plaintiff. The defense by the defendants is that the said minors had no title in or to the land mortgaged. The The superior court found that the said minors did have title to part of the said land, a strip 11 feet wide off the south side of it, and that as to the remainder, a piece 272 feet wide on the north side, the said minors did not have title, and rendered a judgment of foreclosure accordingly against both defendants. The plaintiff has appealed. The finding of the court shows these facts: Sarah Cassidy, then of Meriden, died on the 10th day of February, 1883, possessed of a piece of land in Meriden, bounded north on land of the city about 200 feet, east on Pratt street 1682 feet, south on land of William Corrigan 200 feet, and west on land of Sidney Stone 1682 feet. This was all her estate. She left four children, who were her only heirs, namely, Catherine E. Curran, wife of Bernard F. Curran, Thomas F. Cassidy, Mary A. Sergeant, and Sarah J. Donohoe. She left a will, which was duly

proved and established by the court of probate on the 15th day of February, 1883. Bernard F. Curran was named as the executor. He accepted the trust and duly qualified. The said estate was duly settled in the said court. Distributors were appointed, who made a distribution in writing, pursuant to the specific devises in said will, as follows, viz.: To said Catherine E. Curran a strip of land 53 feet in width, fronting on Pratt street, being taken from the north part of said land, which strip is herein designated as No. 1; to said Thomas F. Cassidy a strip of land 381⁄2 feet in width, lying next south of the part set to Catherine E. Curran, which strip is herein designated as No. 2; to the said Mary A. Sergeant a strip 382 feet wide, lying next south of the part set to Thomas F. Cassidy, which strip is herein designated as No. 3; and to the said Sarah J. Donohoe a strip of land 382 feet in width, lying next south of the part set to Mary A. Sergeant, and being the balance of said land, and being herein designated as No. 4. The said distribution was returned to and accepted by the court of probate, and was recorded in the town records of the town of Meriden as is required by law. All the said heirs of said Sarah Cassidy were then of full age, and they each accepted and adopted said distribution, and each entered into the possession of the piece of land so set and distributed to each of them in severalty, supposing and believing that the said Sarah Cassidy was at the time of her death the owner in fee of the whole of said real estate. Mary A. Sergeant, to whom lot No. 3 was distributed, died on the 18th day of December, 1884, intestate, leaving two minor children, William J. Sergeant and Arthur T. Sergeant. Bernard F. Curran was appointed administrator of the estate of Mrs. Sergeant, and was appointed guardian to each of her said minor children. On the 11th day of March, 1885, the said Curran was empowered by an order of the court of probate to borrow for the benefit of the said minors the sum of $2,200, and to secure the payment thereof by a mortgage of the said tract of land No. 3; and by the authority of and in compliance with the said order the said Curran, guardian, did borrow of the plaintiff for the benefit of the said minors the sum of $2,200, and, to secure the payment thereof, be, as such guardian, executed and gave to the plaintiff a note for that amount, and a mortgage upon said real estate No. 3, which note and mortgage are the same sought to be foreclosed in this action. The said B. F. Curran, as such administrator, being thereto duly authorized by the court of probate, on the 12th day of April, 1889, conveyed the said lot No. 3, subject to his said mortgage, to William J. Sergeant, and on the same day the said Sergeant conveyed the same to Catherine E. Curran. On the 16th day of September, 1892, the said B. F. Curran and Catherine E. Curran mortgaged the said lot No. 3, subject to the mortgage to

the plaintiff, to the J. J. Eager Company The said Catherine E. Curran has conveyed away the whole of the said lot No. 1 so distributed to her pursuant to her mother's will, and has applied the whole of the proceeds thereof to her own use. About June 1, 1890, the defendant Catherine E. Curran learned that the whole of the land disposed of by will of her mother, the said Sarah Cassidy, and distributed thereunder, did not belong to the said testatrix. Fifty feet in width at the south end of the said piece of land belonged to the said Sarah Cassidy in fee. In the remaining 1182 feet she had only a life estate. The remainder interest in the said 1181⁄2 feet of land had in his lifetime belonged to William Cassidy, a son of Sarah Cassidy, and brother to Catherine E. Curran. William Cassidy died before his mother, intestate, unmarried, and without children. So that at the death of Sarah Cassidy the said remainder interest belonged to her children. They were the heirs, being brothers and sisters of the said William Cassidy. Since learning the true state of the title to said land, the defendant Catherine E. Curran has conveyed away the land devised to her: and she has also obtained conveyances from her brothers and sisters, intending thereby to acquire from them such title as they had' from their brother William in the said lot No. 3. She has at all times had full knowledge of the mortgage of the plaintiff, and has paid the interest thereon semiannually down to 1896. She never disputed the title of the plaintiff in said lot No. 3 until after this suit was brought. The 50 feet of land owned in fee by the testatrix, Sarah Cassidy, included lot No. 4, given by her will and set in the distribution to Sarah J. Donohoe, and 112 feet on the south side of lot No. 3, given by her will and set in the distribution to Mary A. Sergeant.

Marcus H. Holcomb and Charles E. Gross, for appellant. Seymour C. Loomis, for appellee J. J. Eager Co. Wilbur F. Davis, for appellee Catherine E. Curran.

ANDREWS, C. J. (after stating the facts). Sarah Cassidy died in 1883, leaving four adult children, her only heirs. By her will she devised to them certain lands, a part of which she owned in fee, and a part of which belonged to the children in common, as the heirs of a deceased brother, who had died intestate. She believed herself to be the owner of all the land, and devised it specifically to her children, directing how it should be divided between them. The children all believed their mother to be the owner of all the land. To her daughter Catherine E. Curran, who is the principal defendant in this case, she devised a strip of the land 51 feet in width Mrs. Curran accepted the devise, and took possession of the land. By this devise Mrs Curran obtained more of the land than she would have had in any other way. Had the will of Mrs. Cassidy been held to operate only