Wednesday, February 7, 2018

Not Off To Peoria Yet

The mortal remains of Archbishop Fulton Sheen are in repose for now as a result of this decision of the New York Appellate Division for the First Judicial Department

the order of the Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about November 17, 2016, which granted the petition to disinter the remains of Archbishop Fulton J. Sheen and transfer them from St. Patrick's Cathedral in New York, New York to St. Mary's Cathedral in Peoria, Illinois, should be reversed, on the law, without costs, and the matter remanded for a hearing in accordance herewith.

Justice Kern dissented

I respectfully dissent and would affirm the decision of the petition court.

It is uncontroverted that Fulton J. Sheen was a renowned Archbishop of the Roman Catholic Church. Archbishop Sheen was born in 1895 in El Paso, Illinois and grew up in nearby Peoria, Illinois. He was ordained a priest in Peoria and served his first pastoral assignment there. In 1951, he moved to New York City and was consecrated a Bishop of the Archdiocese of New York.

Petitioner is Archbishop Sheen's niece. She moved to New York from Illinois when she was 10 years old to live with Archbishop Sheen and was, for all intents and purposes, raised by Archbishop Sheen. Archbishop Sheen provided a Catholic education for petitioner through college, and when she was an adult, Archbishop Sheen continued in a parental role, including helping petitioner locate and furnish her first marital home. When petitioner was older, she became Archbishop Sheen's loyal assistant and confidante, she traveled with Archbishop Sheen, she took care of him during illnesses and she was with him in the 48 hours before he died. Now, at almost 90 years of age, petitioner is his oldest living niece.

Archbishop Sheen passed away in December 1979. Three years before he died, Archbishop Sheen purchased a burial plot in Calvary Cemetery, the official cemetery of the Archdiocese of New York. Just five days before he died, Archbishop Sheen executed a will in which he stated as follows:

"It is my will and I direct that my Executor hereinafter named, arrange for my funeral Mass to be celebrated at St. Patrick's Cathedral, New York City, and for my burial in Calvary Cemetery, the official cemetery of the Archdiocese of New York."

Petitioner contends that after Archbishop Sheen's death, Terence Cardinal Cooke of the Archdiocese of New York sought her permission to inter Archbishop Sheen in a crypt in St. Patrick's Cathedral in Manhattan. Petitioner, as Archbishop Sheen's closest living relative, agreed to the request and Archbishop Sheen was interred at St. Patrick's Cathedral in 1979.

In 2002, more than 20 years after Archbishop Sheen's death, Most Reverend Daniel R. Jenky, Bishop of the Diocese of Peoria, Illinois, began the lengthy process of investigating whether Archbishop Sheen had led a life of heroic virtue which could have him declared a Saint of the Roman Catholic Church. Cardinal Edward Egan, on behalf of the Archdiocese of New York, wrote to Bishop Jenky, assuring him that New York had no objection to Bishop Jenky's attempt at canonization of Archbishop Sheen, observing that the Diocese of Peoria was the "ideal diocese" to initiate the cause, given that Archbishop Sheen was a native and served his first pastoral assignment there. Cardinal Egan also agreed that if Bishop Jenky succeeded in canonizing Archbishop Sheen, he would consent to transfer Archbishop Sheen's remains to the Peoria Diocese.

In 2014, the Chancellor for the Peoria Diocese wrote to the Archdiocese of New York and requested that the remains of Archbishop Sheen be disinterred and transferred to Peoria. A shrine to Archbishop Sheen was in the process of being built at the side altar of St. Mary's Cathedral, with Archbishop Sheen's crypt to be located therein. Counsel for the Archdiocese of New York and the Trustees responded and declined to transfer Archbishop Sheen's remains citing Archbishop Sheen's will and the wishes of his family. Specifically, the Trustees argued that Archbishop Sheen left "explicit instructions . . . that he be buried in New York" and that they had consulted with petitioner, Archbishop Sheen's oldest living relative, who stated that, with the exception of a "distant relative Anne Lyons," the family did not want the Archbishop's remains moved. Archbishop Sheen's closest living relatives, including petitioner, have commenced the present proceeding requesting Archbishop Sheen's remains may be moved from St. Patrick's Cathedral to Peoria.

Specifically, in June 2016, petitioner commenced the instant proceeding pursuant to Not-For-Profit Corporation Law ยง 1510(e) seeking to disinter Archbishop Sheen's remains from the crypt in St. Patrick's Cathedral in New York and transfer them to Peoria, Illinois for interment in the crypt in St. Mary's Cathedral.

Along with her petition, petitioner submitted the affidavits of Bishop Jenky and petitioner's three siblings, all of whom fully consent and support the disinterment and transfer for the following reasons: (i) Archbishop Sheen grew up in Peoria, his parents are buried there and the majority of his next-of-kin continue to reside nearby; (ii) St. Mary's Cathedral is the church where Archbishop Sheen attended services with his family, received his First Holy Communion and was ordained a priest; (iii) Archbishop Sheen frequently visited St. Mary's Cathedral throughout his lifetime; (iv) a shrine to Archbishop Sheen is being built in St. Mary's Cathedral where the burial crypt will be located; and (v) if Archbishop Sheen knew during his lifetime that he would be declared a Roman Catholic Saint, it would have been his wish to be interred at St. Mary's Cathedral.

Respondents answered the petition and objected to the request for disinterment, arguing [*6]that petitioner previously consented to Archbishop Sheen's burial in St. Patrick's Cathedral and that his will directed burial in New York. In support of their answer, respondents submitted the affidavit of Monsignor Hilary C. Franco, who was Archbishop Sheen's assistant from 1962-1967 and remained his close friend thereafter. According to Monsignor Franco's affidavit, Archbishop Sheen "openly expressed [to him] many times his desire to remain in New York even after his death" and was "fond of repeating that Cardinal Cooke had offered him . . . to be buried in the crypt of St. Patrick's Cathedral in New York."

The petition court granted the request for disinterment and transfer of Archbishop Sheen's remains. It found that petitioner had presented good and substantial reasons to disinter Archbishop Sheen's remains and transfer them from St. Patrick's Cathedral to St. Mary's Cathedral in Peoria. The petition court decided that because Archbishop Sheen's stated wish to be buried in Calvary Cemetery was not followed, it would defer to the wishes of the family. In reaching its decision, the petition court found that there was no conflicting evidence regarding Archbishop Sheen's burial wish, which was to be buried in Calvary Cemetery, and rejected as "unsupported speculation" respondents' claim that Archbishop Sheen wanted his remains to stay in New York.

In my opinion, the petition court properly granted the family's request for disinterment and transfer of Archbishop Sheen's remains. "A body may be disinterred upon consent of the cemetery corporation, the owners of the lot, and of the surviving spouse, children, and parents of the deceased" (Matter of Pring v Kensico Cemetery, 54 AD3d 766, 767 [2d Dept 2008], citing N-PCL 1510[e]). Where, as here, consent to disinterment cannot be obtained, permission may be obtained by court order (see N-PCL 1510[e]). "Good and substantial reasons must be shown before disinterment is to be sanctioned" (Matter of Currier [Woodlawn Cemetery], 300 NY 162, 164 [1949]). "[L]ooming large among the factors to be weighed are the wishes of the decedent himself" (id.). Indeed, "[t]he paramount factor a court must consider in granting permission to disinter is the known desires of the decedent" (Brandenburg v St. Michael's Cemetery, 92 AD3d 631, 632 [2d Dept 2012]). Where the decedent's wishes cannot be ascertained, a court must consider the desires of the decedent's next of kin (see id.). An evidentiary hearing is not required unless a material issue of fact is raised as to the burial wishes of the decedent (see Matter of Pring, 54 AD3d at 767 ["since the appellants did not raise a material issue of fact as to the decedent's wishes, the Supreme Court properly determined that no evidentiary hearing was required"]).

In support of its determination the petition court properly found that Archbishop Sheen's burial wishes to be buried in Calvary Cemetery were not followed, that Archbishop Sheen did not express any other wishes with regard to his burial and that petitioner and Archbishop Sheen's other close family members demonstrated good and substantial reasons for the disinterment and transfer of Archbishop Sheen's remains. Such reasons include that Archbishop Sheen's parents are buried only a few blocks from St. Mary's Cathedral in Peoria, that a majority of Archbishop Sheen's next of kin reside nearby, that St. Mary's Cathedral is where Archbishop Sheen was ordained a priest and is a place Archbishop Sheen visited often and that a shrine to Archbishop Sheen is being built in St. Mary's Cathedral where the burial crypt will be located.

Contrary to the majority's decision, an evidentiary hearing is not required as there are no disputed issues of fact as to Archbishop Sheen's burial wishes. The only evidence offered that is contrary to the burial wishes expressed in Archbishop Sheen's will is the affidavit of Monsignor Franco, who affirmed that Archbishop Sheen had repeatedly expressed to him his "desire to remain in New York even after his death" and that he was offered burial in St. Patrick's Cathedral. Given the opportunity to testify at an evidentiary hearing, Monsignor Franco would make the same statements he made in his affidavit, which are insufficient to raise an issue of fact as they are vague and merely speculative as to Archbishop Sheen's burial wishes, as opposed to [*7]the clear and concrete statements made in his will that he wanted to be buried in Calvary Cemetery. If Archbishop Sheen knew of the offer to be buried in St Patrick's Cathedral and wanted to be buried there or if he merely had a desire to be buried somewhere in New York, he could have expressed such desires in his will, which was executed just five days before he died. However, Archbishop Sheen's will did not mention anything about being buried in St. Patrick's Cathedral or a general desire to be buried somewhere in New York. That Archbishop Sheen had long-standing close ties to New York City, was a consecrated Bishop of the Archdiocese of New York, and preached at St. Patrick's Cathedral, does not, as the majority suggest, detract from the fact that Archbishop Sheen's will explicitly stated his desire that he be buried in Calvary Cemetery upon his death.

While, the majority states that an evidentiary hearing may be required even where a decedent expresses his or her burial wishes in a will, for an evidentiary hearing to be required, there must be some evidence of a clear alternate desire by the decedent to be buried elsewhere. The statements made by Monsignor Franco in his affidavit are insufficient to require an evidentiary hearing as they do not demonstrate a clear desire by Archbishop Sheen to be buried somewhere other than in Calvary Cemetery. As a result, Archbishop Sheen's family's wishes should be followed.

Moreover, the statement by the majority that "it is unclear if Archbishop Sheen's direction in his will to be buried in Calvary Cemetery, the official cemetery of the Archdiocese of New York' evinces an express intention to remain buried in the Archdiocese of New York, or was merely a descriptive term for Calvary Cemetery" is belied by the record. Archbishop Sheen's will is clear and specifies Calvary Cemetery as his desired final resting place. The undisputed fact that Archbishop Sheen purchased a plot for himself in Calvary Cemetery in 1976, just three years before his death, is overwhelming evidence that Calvary Cemetery was Archbishop Sheen's desired final resting place.

Finally, as it is undisputed that respondents failed to request an evidentiary hearing before the petition court, and did not pursue such a hearing until they were unsuccessful, their belated request should not be considered.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2018/02/the-remains-of-fulton-sheen-are-justice-kern-dissented-i-respectfully-dissent-and-would-affirm-the-decision-of-the-petition.html

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