Scottish Court of Session Decisions

This was a petition at the instance of Mrs Maggie Mitchell for authority to disinter the remains of her deceased husband, which had been interred in the churchyard of the parish of Gamrie, in order that they might be removed to the churchyard of the parish of King Edward for interment therein. The petitioner craved the Court to appoint the petition to be intimated upon the walls and in the minute-book, and to be served upon the clerk to the heritors of the parish of Gamrie, as representing said heritors, and upon the deceased's three sisters, who were his next-of-kin.

The statements of the petitioner were substantially to the following effect—Her husband had died on the 24th June 1892. He had three sisters who survived him. They had been adverse to the deceased marrying, had conceived a groundless dislike to the petitioner, and had always treated her coldly. When her husband died the petitioner had been so overcome with grief that she had been unable to give directions for the funeral, and the place of interment had been determined by her eldest sister-in-law, who gave directions that the deceased should be buried in Gamrie churchyard. The deceased accordingly had been interred there on 29th June. Though resident in Gamrie parish the family had attended the parish church of King Edward, and had always been associated with the concerns and interests of that parish. On going to visit her husband's grave in Gamrie churchyard shortly after the funeral, the petitioner had found the churchyard to be in an offensive and deplorable condition from neglect. His sisters-in-law also refused to allow the petitioner to erect a tombstone to her husband's memory unless the inscription to be put upon it received their approval. They had further expressed themselves to the effect that they would take care that when the petitioner died she should not be laid beside her husband. Although it might not be in their power, the petitioner believed they would seek to prevent her remains being laid beside her husband's. The petitioner had purchased burying-ground in the churchyard of the parish of King Edward, and in the circumstances she deemed it desirable to have her husband's remains removed there. There were no bodies buried above that of the deceased, and the disinterment would cause no disarrangement of the burying-ground, or removal of tombstones, or other interference with the rights of third parties.

The Court ordered intimation and service as craved. No answers were lodged.

The petitioner argued—That though there was no direct authority upon the point, the Court clearly had jurisdiction to entertain an application of this kind— Wright v. Wright, October 20, 1881, 9 R. 15. [The Lord President referred to Lees on Sheriff Court Styles (3rd ed.), p. 161.]

The Court pronounced this interlocutor:—

“The Lords having heard counsel for the petitioner upon the petition, no answers having been lodged, remit to the Sheriff to inquire into the facts set forth in the petition, with power to proceed in the said petition as shall be just.”