Wright v Wright
| Jurisdiction | Scotland |
| Judgment Date | 20 October 1881 |
| Date | 20 October 1881 |
| Docket Number | No. 6. |
| Court | Court of Session |
Lord Young, Lord Craighill, Lord Rutherfurd Clark.
Churchyard—Tombstone, right to remove.—
A mother erected, in memory of her son, a tombstone on his grave, the ground for which had been purchased with his own funds. The stone was erected without consulting the deceased's brother, his sole next of kin and executor, two years after the death. Two years after the stone had been erected the brother removed it. Held that the mother was entitled to have the stone restored.
In August 1880 Mrs Elizabeth Wright, Aberdeen, obtained, in the Sheriff Court there, interim interdict against her son William Wright, farmer, Darnford, interdicting him ‘from removing from the grave of the pursuer's deceased son Duncan Wright, in the Allanvale Cemetery, in the parish of Old Machar and county of Aberdeen, a monumental gravestone that was placed there by the pursuer in memory of her said son.’
On 9th August, the morning on which the interdict was served, but before service was executed, the defender had the tombstone removed from the grave.
In October Mrs Wright presented a petition in the Sheriff Court, Aberdeen, praying the Court to ordain her son William Wright to restore the said tombstone to its place.
The two actions were conjoined.
Mrs Wright pleaded;—(1) The gravestone in question having been placed by the pursuer on the grave of her deceased son, with the knowledge and approval of the members of her family, and the said grave having been purchased out of the executry estate of the deceased, the defender had no right or title to remove the said gravestone, and the pursuer is entitled to have it restored. (2) The action of the defender in removing the said gravestone being unnatural, and contrary to good morals and common decency, the defender is bound to make restitution—at least the pursuer is entitled to have the status quo maintained pending the defender's establishing any higher right in the Court of Session, and decree ought to be pronounced as prayed for, with expenses.
The defender pleaded;—(1) The lair or grave in question being the defender's property, the pursuer is not entitled to erect a gravestone thereon. (2) The gravestone in question having been erected without the knowledge or consent of the defender, he was entitled to remove it, and the present proceedings are incompetent.
A proof was led, from which it appeared that Duncan Wright, the son of the pursuer, died, on 3d August 1875, possessed...
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