Unclaimed Remains in the District of Columbia

The Washington Post has an interesting story about the disposition of unclaimed remains in the District of Columbia.  Also includes references to the law in Maryland:

After attempting to contact relatives and waiting three days for them to come forward, Maryland donates its unclaimed remains to medical research, declaring on a graveyard monument its “deep appreciation for those who gave unselfishly of themselves to advance medical education.”

“Maryland has always had a system,” said Ronn Wade, an official with the state Anatomy Board, which handles unclaimed remains.

Wade said the number of unclaimed bodies in the state has risen steadily in recent decades. In 1973, the state buried 60 unclaimed bodies — but last year, it handled 729. This surge, Wade said, isn’t just about population growth or poverty. Rather, life spans have lengthened and families have grown smaller, more spread out and less close-knit.

Tanya Marsh

Visiting Kaisergruft in Vienna, Austria

The Kaisergruft (or Imperial Crypt) is the last resting place of 146 members of the Hapsburg family, plus urns containing the hearts or cremains of four others.  There are 107 visible sarcophagi that range in style from plain to very ornate. 

Until far in the 18th century, the most common material for a sarcophagus here was a bronze-like alloy of tin, coated with shellac. The splendid tombs of the baroque and rococo eras are made of true bronze, a nobler and therefore more expensive material. Reforming Emperor Joseph II decreed simplified burial customs for the people, and introduced the use of lighter and cheaper copper into the Imperial Crypt, where it was then used into the 19th century. In the later 19th century a mixture of cast brass and bronze as well as silver-bronzed copper was adopted. Other metals were used only rarely, except for silver and gold plating on decorations.

Within the outer case lies a wooden coffin that is wrapped in silk (black with gold trim for rulers, red with silver trim for others). The coffin usually has two locks, the key to one is kept by the Capuchin Guardian of the crypt, the other is kept in the Schatzkammer of the Hofburg palace in Vienna.

Continue reading "Visiting Kaisergruft in Vienna, Austria" »

Visiting the Hill of Slane in County Meath, Ireland

The Hill of Slane in the Boyne Valley is within sight of the Hill of Tara.  Rumored to be a spot where St. Patrick lit a Pascal fire in 433 A.D., the Hill of Slane currently has the ruins of a friary church, including a 62-foot high early gothic tower.  The friary was abandoned in 1723 but the adjoining churchyard contains new burials.



Tanya Marsh

Visiting Christchurch Cathedral in Dublin

I had the opportunity visit Christchurch Cathedral in Dublin, Ireland last week.  The Cathedral was founded around 1028, improved for centuries, and extensively renovated in the late 1800s.  Like other medieval European churches, burials can be found throughout the building and grounds.

The nave of the Church contains the tomb of Richard de Clare, 2nd Earl of Pembroke, better known as "Strongbow," an English lord who participated in the Norman invasion of England.  Strongbow died in 1176.


There are also remains underneath the floors;


and in the walls;


and in the crypt.


Tanya Marsh



Arkansas Funeral Home Owners Face Criminal Charges

The Associated Press reports that three men were arrested and charged this week following the discovery earlier this year of cadavers in a closed funeral home.  The owners of the funeral home, LeRoy Wood, age 86, and his son Ron Wood, age 61, were charged along with the general manager of the funeral home, Edward Snow. 

From the AP story:

According to the affidavit filed in support of the criminal charges, Snow and other employees "began placing bodies wherever they could find a space for them in room temperature. Bodies were stacked on top of one another, on pallets, on the washer and dryer and on every available space they could find. Coffee cans with deodorizer were placed next to bodies to help with the odor in the room."

Employees told police that the Woods refused to stop taking bodies despite the lack of space, according to the affidavit. The employees said there was an unusually high volume of death calls in January, but that the owners added to the back-up by refusing to perform services until they were paid in full.

According to the affidavit, the owners authorized services on some bodies once the investigation began. Investigators removed 31 bodies and 22 sets of cremated remains. The condition of 13 of those bodies was believed to qualify for charges of abuse of a corpse.

The State Board of Embalmers and Funeral Directors investigated after a former employee complained. The board's records show LeRoy Wood surrendered his funeral director license, his crematory license and his funeral establishment license after signing a consent agreement with the board in early February that also required him to pay a $10,000 fine and refund payments to families that had not received adequate services.

The Arkansas statute defining "abuse of a corpse" is based on Model Penal Code statute 250.10.  The statute reads:

(a) A person commits abuse of a corpse if, except as authorized by law, he or she knowingly:

(1) Disinters, removes, dissects, or mutilates a corpse; or
(2)(A) Physically mistreats or conceals a corpse in a manner offensive to a person of reasonable sensibilities.
(B) A person who conceals a corpse in a manner offensive to a person of reasonable sensibilities that results in the corpse remaining concealed is continuing in a course of conduct under § 5-1-109(e)(1)(B).
(C)(i) As used in this section, “in a manner offensive to a person of reasonable sensibilities” means in a manner that is outside the normal practices of handling or disposing of a corpse.
(ii) “In a manner offensive to a person of reasonable sensibilities” includes without limitation the dismembering, submerging, or burning of a corpse.
(b) Abuse of a corpse is a Class C felony.
The statute includes broad language that would appear to address the treatment described by the AP story.  Although the defendants will surely argue the statute is unconstitutionally vague, The Supreme Court of Arkansas enforced the application of the statute in 1995 against a woman who disposed of the remains of her stillborn child in a dumpster.
[W]e cannot conclude that our statute is unconstitutionally vague, as it conveys fair and sufficient warning when measured by common understanding. Particularly, the words “physically” and “mistreats” are commonly understood. The word “physical” is defined as “of or relating to the body,” and the term “mistreat” as “to treat badly: abuse.” See Webster's Ninth New Collegiate Dictionary 760, 887 (1988).

Dougan v. State, 322 Ark. 384, 392, 912 S.W.2d 400, 404 (1995).

In Arkansas, each Class C felony is punishable by a prison term no less than three years and no more than ten years. Each of the three men, if convicted on all 13 counts, therefore faces prison terms ranging from 39 to 130 years. Civil lawsuits are also apparently being filed by the kin of some of the deceased.

Tanya Marsh

Not a nuisance, but perhaps a taboo?

Common law is very clear that cemeteries are not a nuisance per se.  This means that as long as it is permitted by applicable zoning and other land use laws, neighbors cannot block the development of a cemetery.  A proposed 100,000 plot cemetery on 60 acres in San Ramon, California, however, raises an interesting issue.  Many of the residents in the surrounding area are "are natives of China and India who believe that living near a cemetery — even one that would not be visible from their homes — is taboo." 

“We really are affected mentally and psychologically,” said Angappa Murali, a software engineer at Hitachi Data Systems who is from India. “Most of us are immigrants,” he said of his neighbors. “We still have spiritual connections.”

In light of the cultural prohibitions on living near a graveyard shared by many in the San Ramon community, should courts re-evaluate the common law rule? 

It is important to note that nobody particularly enjoys living next to a graveyard.  Since Roman times, graves have generally been located on the outskirts of populated areas.  Although the focus of European Christian burial was in churchyards, a tradition which was followed in colonial times and is still followed in many parts of the United States, American cities like New York, Chicago, and San Francisco have been exiling cemeteries for centuries.  The common law rule that cemeteries (and funeral homes) are not a per se nuisance is not because of their wide acceptance by neighbors.  In 1917, the Supreme Court of Michigan considered an effort by neighbors to halt the construction of a funeral home in Lansing:

We think it requires no deep research in psychology to reach the conclusion that a constant reminder of death has a depressing influence upon the normal person.  Cheerful surroundings are conducive to recovery for one suffering from disease, and cheerful surroundings are conducive to the maintenance of vigorous health in the normal person.  Mental depression, horror, and dread lower the vitality, rendering one more susceptible to disease, and reduce the power of resistance.  … [This] is a matter of common knowledge.  The constant going and coming of the hearse … the not infrequent taking in and out of dead bodies; the occasional funeral, with its mourners and funeral airs; … the unknown dead in the morgue; … the thought of autopsies of embalming; the dread, or horror, or thought, that the dead are or may be lying in the house next door, a morgue; the dread of communicable disease, not well founded, as we have seen, but nevertheless present in the mind of the normal layman – all of these are conducive to depression of the normal person; each of these a constant reminder of mortality.

Saier v. Joy, 164 N.W. 507 (Mich. 1917).  The neighbors in the modern San Ramon case offer similar objections:

Jay Yao, who emigrated from China, is the chief organizer of the cemetery opponents and says funerals would cast a pall on the community. “They will be forcing kids to see funeral processions,” said Mr. Yao, a vice president of quantitative research at Morgan Stanley Capital International. “Children didn’t do something wrong — why do they have to see it at such an early age?”

Community officials in San Ramon appear to think that the "Chinese and Indian residents with spiritual or cultural objections" to the cemetery are raising new issues.  They are not.  As the Supreme Court of Michigan so colorfully opined in 1917, everyone finds cemeteries depressing.

Tanya Marsh

Thomas Jefferson's Obelisk: Desecration and Restoration

Tj 2

After enduring over 150 years of wear and tear, Thomas Jefferson’s personally designed tombstone will be restored to its original state.

Long before his passing in 1826, Thomas Jefferson contemplated his inevitable death.  As a boy, he studied beneath the shade of a favorite oak tree with his closest friend Dabney Carr.  The boys promised each other that the survivor would bury the other at the oak’s foot.  When Carr died in 1773, Jefferson followed through on his burial agreement, burying Carr beneath the favorite oak and beginning the Monticello Graveyard.  Carr was only thirty years old.

Later, Jefferson devised explicit instructions for his own burial alongside his childhood friend at Monticello.  Jefferson’s document stated that he desired “a plain die of cube of 3 f[eet] without any moldings, surmounted by an Obelisk of 6 f[oot] height” and provided a sketch of the grave marker. As for the epitaph, Jefferson dictated that on the obelisk’s face ‘the following inscription, & not a word more” should appear:

Here was buried
Thomas Jefferson
Author of the Declaration of American Independence
of the Statute of Virginia for religious freedom
& Father of the University of Virginia

Jefferson explained "because by these, as testimonials that I have lived, I wish most to be remembered."  Yet, scholars finding Jefferson’s choice to exclude his presidency from the list perplexing.


In 1833, Jefferson’s grave marker was erected at Monticello according to his instructions.  However, the marker quickly became the subject of vandalism as visitors chipped off pieces of the stone for souvenirs.  Thus, the marker was moved into the house at Monticello for protection.

Years later, Congress passed a joint resolution providing funding for a new monument and the original marker left Monticello permanently.  Jefferson’s descendants decided to donate the original obelisk to the University of Missouri.  The university seemed appropriate because not only was it the first public university in Louisiana Purchase Territory, which Jefferson was instrumental in acquiring, but the university was modeled after Jefferson’s University of Virginia.

On July 4, 1885, the obelisk was officially dedicated to the university, but the marble slab bearing Jefferson’s epitaph remains in disrepair today.  Now, the Smithsonian Museum Conservation Institute will endeavor to restore the stone, but estimates the project will take at least a year to complete.  After, the stone will return to its permanent display at the University of Missouri.  In the meantime, the Smithsonian Institution’s Office of Exhibits Central has created two replicas, one of which will be used for educational presentations.


One final note: grave desecration is illegal in many states today, including Virginia where Jefferson’s replacement grave marker is located.  See Va. Code Ann. § 18.2-127 (making grave desecration a Class 6 felony).

Evelyn Norton

Death at a Funeral: Dishonoring a Woman's Life at Her Own Funeral

On October 9, 2014, a woman died suddenly of a brain aneurysm at the young age of 32. Her family held an open-casket funeral for her over a month later. However, the body that lay in the casket was not the Jennifer Gable that many of her loved ones would recognize.

Jennifer Gable had been living as a transgender woman for at least seven years. She legally changed her name from Geoffrey to Jennifer in 2007. Upon her death, her family cut her hair and dressed her in a suit as her body was displayed to family and friends at funeral services. Additionally, her obituary only referred to Geoffrey Gable and spoke of “his” marriage to a woman, educational background, and love of sports.

Some news coverage of this event warns us to register our final wishes with an attorney. One member of the media asks, “Is that something you should have to put in your will? Like, please bury me as I am?”

However, United States courts have refused to recognize property rights in dead bodies. As such, we are not given the opportunity to dictate disposition of our bodies in a legally-binding, testamentary document in the same way that we might be able to with a vintage car or a beloved jewelry collection. This becomes a particularly relevant problem for transgender persons whose families may be unaccepting. Furthermore, these issues do not often reach a court of law because, simply put, there is no return on the investment so litigants are not willing to pay for the cost of legal action.

Crissy Dixon

Mineral Interests in Cemeteries

The nature of burial rights is an interesting and complicated property question.  Burial rights are more like an easement or a license than a fee simple interest in real estate.  But I'd never considered whether mineral rights may be sold in cemeteries, and whether that would be inconsistent with burial rights.  An interesting short piece on that topic can be found here.

Tanya Marsh