Rest At Peace In West Virginia Has A Heroes Exception

The West Virginia Supreme Court of Appeals affirmed an order to remove the mortal remains of a World War I Medal of Honor winner to a veterans cemetery from his resting place of nearly 83 years in a family cemetery. 

The petition was filed by another MOH winner otherwise unconnected to his fellow hero

This appeal arises from a petition filed in the Circuit Court of Mason County seeking authorization to disinter the remains of Chester Howard West, a World War I Medal of Honor recipient, and bury him with full military honors at the Gold Star Family Memorial Monument located within the Donel C. Kinnard Memorial State Veterans Cemetery in Institute, West Virginia (“Veterans Cemetery”). Hershel Woodrow Williams, a Medal of Honor recipient, filed the petition for Mr. West to be recognized as a recipient of the highest award a citizen can receive for bravery and valor. In an order dated March 23, 2016, the Circuit Court of Mason County granted Mr. Williams’s petition.

Petitioner Roger VanSickle urges this Court to reverse the order below on the grounds that the circuit court lacks the authority to rule on the question of disinterment of Mr. West’s remains. Alternatively, Mr. VanSickle argues that the circuit court abused its discretion in concluding that the equities favor disinterment over the wishes of the surviving spouse at the time of Mr. West’s death and the living VanSickle family relatives.

Mr. Williams argues that the circuit court properly exercised its equitable jurisdiction and carefully balanced the equities in favor of disinterment of Mr. West’s remains. He contends that Mr. West’s remains should be moved to the Veterans Cemetery so that he is honored for his heroic service and his grave is properly maintained.

On the opening day of the Meuse-Argonne offensive, the deceased

While making his way through a thick fog, his advance was halted by direct and unusual machine gun fire from two guns. Without aid, he at once dashed through the fire and, attacking the nest, killed two of the gunners, one of whom was an officer. This prompt and decisive hand-to-hand encounter on his part enabled his company to advance farther without the loss of a man.

He survived the Great War and married Elizabeth VanSickle. He was shot and killed by one Sam McCausland on May 20, 1935.

Wikipedia tells the story of his life and murder. His murderer was the son of a Confederate general.

He had laid at rest in the VanSickle family cemetery ever since until

In 2015, a Boy Scout learned of Mr. West’s Medal of Honor status and burial in Mason County and sought to locate the VanSickle family cemetery as an Eagle Scout project. The Boy Scout, with the help of family members and other scouts, located the cemetery and cleared it. The work included removal of a large oak tree that had fallen and damaged two of the headstones, including Mr. West’s headstone.

The circuit court exercised its equitable discretion in favor of disinterment. The order is linked here.

The court here affirmed and has sent Mr. West to his new place of honor .

…the record contains no evidence of living blood relatives of Mr. West. While Mr. VanSickle filed an objection to Mr. Williams’s petition to disinter Mr. West’s remains and others testified at the hearing, all of those objecting to the removal have no direct, familial connection to Mr. West. Mr. West’s surviving spouse remarried and died over sixty-five years ago, leaving no documented sentiment as to her own burial with her first husband. The VanSickle family cemetery is now overgrown and neglected in a remote section of a public wildlife management area owned by the State. To date, no one on Mr. West’s behalf has asserted any right to enter into the [burial site] Cornstalk WMA to provide upkeep to the cemetery and particularly the gravesite of this Medal of Honor recipient.

On the other hand, upon discovery of Mr. West’s remains, Mr. Williams has expended time and energy to arrange for persons qualified to undertake Mr. West’s disinterment with dignity and care, transport his remains with honor, reinter them with full military honors, and provide perpetual care for his gravesite. We understand that the VanSickle family has been denied the opportunity to enter Cornstalk WMA with the necessary equipment to keep the cemetery in the condition deserving of their loved ones. The fact remains that the cemetery where he is buried is in a location where perpetual care is highly unlikely. Mr. Williams has demonstrated the integrity and capacity to provide a most suitable and deserving resting place for Mr. West’s remains. 

A moving dissent by Chief Justice Loughry

“‘[A]s to the dead, who are not here to answer for themselves, it would be the height of injustice and cruelty to disturb their ashes, and violate the sanctity of the grave[.]’” Haudenschilt v. Haudenschilt, 129 W.Va. 92, 121, 39 S.E.2d 328, 343 (1946) (Kenna, J., dissenting) (internal citation omitted). Yet, the majority of this Court has done just that and, in the process, they have opened Pandora’s Box. Critically, “[g]ood intentions . . . like bad facts[] sometimes make bad law.” Motorists Mut. Ins. Co. v. Huron Rd. Hosp., 653 N.E.2d235, 239 (Ohio 1995). Consequently, I am impelled to dissent…

In short, the exhumation of Mr. West’s earthly remains is completely unnecessary to fulfill Mr. Williams’s admirable wish to honor Mr. West’s distinguished military service. In fact, the circuit court’s order references the Gold Star Family Memorial Monument established by the Medal of Honor Foundation within The Donel C. Kinnard Memorial State Veterans Cemetery. If that particular monument cannot be employed in some manner to honor Mr. West’s memory and status as a Medal of Honor recipient, then perhaps another monument could be erected in the cemetery to honor not only Mr. West, but all West Virginians who receive the Medal of Honor but who either have been or will be laid to rest elsewhere.

Not only is the majority’s decision both legally and equitably wrong, I am deeply concerned that a dangerous precedent has been set that threatens the sanctity of burial in this state. Will third-parties now have an imprimatur to seek the disinterment of any person with whom they have no relationship, either legal, familial, or otherwise, if their purpose is sufficiently laudable? Further, will a laudable purpose alone be sufficient, or will an ill-maintained cemetery also be required for court-ordered disinterment? Moreover, by what standards will a circuit court determine whether the purpose for disinterment is sufficiently commendable or whether a cemetery’s maintenance is sufficiently inadequate to warrant disinterment?

Lastly, and to the extent the majority’s holding extends the risk of a judicially ordered disinterment to any deceased person in this State, I would caution lawyers engaged in estate work to apprise their clients–veterans and non-veterans alike–that if they wish their final resting place to be just that–final–their wish needs to be explicitly set forth in their testamentary papers with the caveat that their corporeal remains never be moved absent particularized circumstances. Unlike Mr. West, there may not be someone to defend a decedent’s final resting place, but perhaps a recorded will containing specific burial instructions would carry some weight when a legal action is instituted seeking to disinter a person twenty, fifty or, as in the case at bar, nearly a hundred years later.

Justice Workman also dissented

In this case, we confront the question of whether a person with honorable intentions but absolutely no personal connection to or familial relationship with a deceased person has a unilateral right to remove the deceased’s remains, contrary to both the wishes of his widow and his remaining kin. The majority permits this result in the face of such familial objection ostensibly because it agrees that a stranger to the deceased will provide a resting place more befitting the deceased than his family.

An American hero, First Sergeant Chester Howard West (hereinafter “Sgt. West”) was the recipient of the Congressional Medal of Honor for his courageous service at the age of 20 during battle as a member of the 363rd Infantry Regiment of the U.S. Army 91st Division. Sgt. West survived the war, but died seventeen years later, still a young man at age 37, leaving a young widow, Maggie VanSickle. Maggie made the decision to bury her husband in the VanSickle family cemetery in Mason County, and he has been at his eternal rest for now more than eighty-two years.

Hershel Woodrow Williams (hereinafter “Mr. Williams”), another American hero and recipient of the Congressional Medal of Honor, discovered that Sgt. West’s gravesite was not well-cared for in the VanSickle family cemetery, which is located in a remote area of Mason County within the Chief Cornstalk Wildlife area which is owned and managed by the State. Mr. Williams unilaterally decided that Sgt. West’s remains should be removed to the Donald C. Kinnard cemetery—a location which Mr. Williams believes to be a more honored resting place. The lower court and the majority permit this disinterment by Mr. Williams on the basis of a weighing of the equities, finding that the VanSickle family cemetery is not a “place of honor” and that by being removed to the Kinnard cemetery, he may be more appropriately honored and potentially re-connected with “lost family member[s].”

This analysis is simplistic and to some appealing, but there is a major obstacle to this reasoning: the important concept in American jurisprudence called“standing,” which the majority does not even address…

In this matter, despite his noble intentions, Mr. Williams lacks standing because he fails to articulate a legally cognizable interest and threatened or actual injury entitling him to remove Sgt. West’s remains…

There is hundred-year-old case law recognizing a strong common law presumption in favor of repose. In fact, since antiquity, most societies have held burial grounds in great reverence. The early common law protected the sanctity of the grave by recognizing the “right” to a decent burial and the “right” to undisturbed repose.  Accordingly, unless a good and substantial reason existed, the common law strongly disfavored disturbing a body once it had been suitably buried. In the words of Justice Cardozo, then a member of the New York Court of Appeals, “[t]he dead are to rest where they have been laid unless reason of substance is brought forward for disturbing their repose.” Yome v. Gorman, 152 N.E. 126, 129 (N.Y. Ct. App. 1926)(other citations omitted) 

Mr. Williams was awarded his Medal of Honor for heroism on Iwo Jima.

For conspicuous gallantry and  intrepidity at the risk of his life above and beyond the call of duty as Demolition Sergeant serving with the First Battalion, Twenty-First Marines, Third Marine Division, in action against enemy Japanese forces on Iwo Jima, Volcano Island, 23 February 1945. Quick to volunteer his services when our tanks were maneuvering vainly to open a lane for the infantry through the network of reinforced concrete pillboxes, buried mines and black, volcanic sands, Corporal Williams daringly went forward alone to attempt the reduction of devastating machine-gun fire from the unyielding positions. Covered only by four riflemen, he fought desperately for four hours under terrific enemy small-arms fire and repeatedly returned to his own lines to prepare demolition charges and obtain serviced flame throwers, struggling back, frequently to the rear of hostile emplacements, to wipe out one position after another. On one occasion he daringly mounted a pillbox to insert the nozzle of his flame thrower through the air vent, kill the occupants and silence the gun; on another he grimly charged enemy riflemen who attempted to stop him with bayonets and destroyed them with a burst of flame from his weapon. His unyielding determination and extraordinary heroism in the face of ruthless enemy resistance were directly instrumental in neutralizing one of the most fanatically defended Japanese strong points encountered by his regiment and aided in enabling his company to reach its’ objective. Corporal Williams’ aggressive fighting spirit and valiant devotion to duty throughout this fiercely contested action sustain and enhance the highest traditions of the United States Naval Service.

The State Journal covered the case when it was before the court. (Mike Frisch)