Supreme Court of South Carolina, 1915

In re Estate of Percival

Supreme Court of South Carolina · Decided May 20, 1915 · Gage

85 S.E. 247; 101 S.C. 198; 1915 S.C. LEXIS 100 (South Eastern Reporter)

Counsel

Messrs. Mordecai Gadsden Rutledge , for the Commissioners of the Sinking Fund, appellants, submit: Graves are to be protected, not disturbed: 91 S.C. 41 ; 68 S.C. 490 ; 23 S.C. 25 ; 13 Cyc. 271; 152 Ala. 30 ; 44 So. 598 ; 22 L.R.A. (N.S.) 513; 34 Am. Rep. 446. Examination of person: 60 S.C. 117 ; 85 S.C. 422 . Messrs. Barron, McKay, Frierson Moffatt , also for Sinking Fund Commission. Mr. Frank F. Herndon , for Patrick Purcell, appellant, cites: 68 S.C. 489 . Messrs. Ficken Erckmann, James Allan and T.S. McMillan , for Bridget Purcell et al. , respondents, submit: Order not appealable: 68 S.C. 492 ; 6 Rich. Eq. 249; 119 N.Y. 404 ; 106 N.Y. 272 ; 2 S.C. 390 . Motion to dismiss .

Opinion of the Court

The opinion of the Court was delivered by

Mr. Justice Gage.

The exigencies of the cause prevents a recital of its history and a full statement of the issues which have been made. So much of that as shall be necessary may be set out by the reporter. The appeal is from an order of the Circuit Court which directed the exhumation of a dead body interred in Magnolia Cemetery, at Charleston, in the last months of 1914. The object of the disinterment is to see if the body sustains certain marks which may certainly identify it as that of one who was the alleged child of Bridget Purcell, of the Dominion of Canada.

All those who have been instructed in and who believe the Bible, believe that the living body is made in the image of God, that it is his temple, and that the “Spirit of God dwelleth in it.” If that be so, then the dead body, even, ought to be, and is, regarded with grave concern. ■ When it has been put away, “earth to earth,” it ought not to be lightly disturbed. For that reason, an order directing its exhumation ought not to be made except upon the most serious consideration. And it matters not whether it be the body of one called saint or called sinner, if we dare to pretend to a knowledge of that character. The serious import of the order, then, makes it one which ought to be, and is in many cases, subject to appeal. While the dead body ought not to be, and is not, subject to the control and gaze of all or many individuals, it ought to be subject to the examination of her who bore it. The petitioner here claims to be the mother of her who is dead. If that be so, then she ought to have the right and privilege to undo the grave and see its inhabitant. If the .testimony makes out her *207 contention prima facie, then we think the petitioner is entitled to the order.

In the instant case the circumstances tending to prove the fact need not be recited. It is sufficient to say they show such a connection betwixt the child who is alleged to have begun life in Canada and the woman who died and was' buried in Charleston as to raise the presumption that they are one and the same.

The genuineness of the witnesses who swore has not been challenged by proof, nor has that which they swore to been controverted in like manner.

We are, therefore, of the opinion that the order of the Circuit Court was properly granted, and must be, and is, affirmed.

Footnote. — As to power of Court to order disinterment of corpse for evidential purposes, see note in 22 L. R. A. (N. S.) 513.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.