In re the Estate of Eichner , 173 Misc. 644 ( 1940 )

Foley, S.

This is an application by the executors for instructions as to the disposal of the remains of the testator. Paragraph second of his will provides as follows: “ Upon my death, I request my Executors to attend to the cremation of my body, and to have my ashes preserved in a suitable receptacle and interred in Union Fields Cemetery, Cypress Hills, in Brooklyn, New York, in as. close proximity to the graves of my departed beloved parents as is possible.”

Opposition has developed on the part of some of the next of kin to the carrying out of this request of the testator. The authorities are clear, however, that the wishes of a decedent in respect of the disposition of his remains are paramount to all other considerations. (Matter of Donn, 14 N. Y. Supp. 189; Cooney v. English, 86 Misc. 292; Matter of Johnson, 169 id. 215.) Section 2210 of the Penal Law of this State specifically confers upon a person “ the right to direct the manner in which his body shall be disposed of after his death." If the executors violated the duty cast upon them by that section and by the will they might leave themselves open to criminal prosecution. In Matter of Johnson (supra) Surrogate Delehanty wrote a comprehensive and historical review of the law of cadavers and burials and sustained the effectiveness of a testamentary instrument which was admitted to probate for the sole purpose of giving effect to a provision for the disposition of the body of the testatrix. There the testatrix bequeathed her body for the purpose of medical research and directed that thereafter it be cremated.

The direction contained in the will here is reasonable, practical and capable of performance.

The desire of the testator must be given effect. In view of the plain duty of the executors under the statute and decisions, the opposition of the other members of the family to cremation is without legal support or any other force.

Submit order on notice directing disposition of his remains in accordance with the provisions of the will.