ABE STONE

SOLLIE POLEN

IZZIE SHAHOOD

The Judges Gave The Body To Milstein

The statute has a priority list (husband, children over 18, then the father or mother), so that means that Vergie gets the body. But there is also a case, Cohen vs Cohen, that says 'The deceased wishes" are what counts. The Cohen case is where a Jewish man marries a Shiksas, the husband dies, the Jewish man's sisters don't want a Goyim buried in Jewish holy ground. The Judges void the will, considering the sister's testimony as the true authority, and the two are buried in a Gentile cemetery.

So, in Anna's case, the three judges say that Milstein, a guardian appointed by Judge Seidlin, is in control. That Anna Nicole's 'wishes' were to be buried next to the son, and that negates the Florida statues about parental priority. Stern supposedly urged Anna to bury Daniel in the Bahamas. The judges relied on the purchase of Bahamas burial plots as Anna's intent, even though Stern name is on the deeds.

Anyone with any decency would exhume Daniel, and let the grandmother bury them both in Texas. What does Stern care, he won't ever visit those graves. There has to be a reason he doesn't want those bodies in the grandmother's hands.

Stern knows that Dannielyn will inherit the $500 million, so he will either keep the baby, or cut a deal with Birkhead. The baby goes to Birkhead, Stern handles the inheritance case on a 35% contingency, and remains executor, collecting a $700,000 annual fee.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

January Term 2007


VIRGIE ARTHUR,

Appellant,

v.

RICHARD C. MILSTEIN, Guardian Ad Litem for Dannielynn Hope
Marshall Stern, and HOWARD K. STERN,

Appellees.
No. 4D07-715

[February 28, 2007]

PER CURIAM.


Virgie Arthur, as natural mother and next of kin of the decedent,
Vickie Lynn Marshall a/k/a Anna Nicole Smith, has filed an emergency
petition for writ of certiorari. Through the petition, she asks this court to
quash the trial court’s February 22, 2007 order that granted Dannielynn
Hope Marshall Stern’s motion to recognize her sole right to determine the
disposition of Smith’s remains and the related ruling directing that the
Guardian Ad Litem direct all aspects with respect to the handling of
those remains consistent with the best interest of that child. We re-
designate the case as an appeal from a final order and have expedited
relief accordingly. § 9.110(a)(2). Fla. R. App. P.1 We affirm the trial
court’s decision and address the second of the three points raised.


The trial court found that Arthur and the Guardian Ad Litem, on
behalf of the child, both qualified as a “legally authorized person” as that
term is defined in Florida Statute section 497.005(37). In finding that
both were legally authorized, Florida Statute section 406.50(4) directs
that priority to the remains pass in accordance with section 732.103 of
the probate code. Under section 732.103, the lineal descendants of the
decedent have priority.

Arthur argues that she, alone, is the “legally authorized person” to
take possession of the remains, and the trial court erred in finding that

1 The parties in their filings and at oral argument stipulated to treatment of the case
either as a certiorari proceeding or a final appeal. See § 9.040(c), Fla. R. App. P.
the Guardian Ad Litem is an additional “legally authorized person.” The
phrase “legally authorized person” is found in Florida Statute section
497.005(37) (2006), which provides:



(37) "Legally authorized person" means, in the priority listed,
the decedent, when written inter vivos authorizations and
directions are provided by the decedent; the surviving
spouse, unless the spouse has been arrested for committing
against the deceased an act of domestic violence as defined
in s. 741.28 that resulted in or contributed to the death of
the deceased; a son or daughter who is 18 years of age or
older; a parent; a brother or sister who is 18 years of age or
older; a grandchild who is 18 years of age or older; a
grandparent; or any person in the next degree of kinship. In
addition, the term may include, if no family member exists or
is available, the guardian of the dead person at the time of
death; the personal representative of the deceased; the
attorney in fact of the dead person at the time of death; . . . .
Where there is a person in any priority class listed in this
subsection, the funeral establishment shall rely upon the
authorization of any one legally authorized person of that
class if that person represents that she or he is not aware of
any objection to the cremation of the deceased's human
remains by others in the same class of the person making
the representation or of any person in a higher priority class.



In the event more than one legally authorized person claims a body in
the custody of the medical examiner for interment, section 406.50(4)
provides that the requests shall be prioritized in accordance with section
732.103. Florida Statute section 732.103 of the Florida Probate Code
provides that the part of the intestate estate not passing to the surviving
spouse under section 732.102, or the entire intestate estate if there is no
surviving spouse, descends first to the lineal descendants of the
decedent, and if there is no lineal descendant, to the decedent's father
and mother equally, or to the survivor of them.


The trial court relied upon section 406.50(4) to determine that
Dannielynn had priority over Arthur. Arthur’s position is that
dependence on section 406.50(4) was error in this case as she is the sole
“legally authorized person” as contemplated by section 497.005(37), and
as such, she is entitled to make decisions regarding the disposition of the
decedent’s remains.


We find that neither section 497.005(37), nor section 406.50, control
the outcome of this case, which in essence involves private parties
engaged in a pre-burial dispute as to the decedent’s remains. Otherwise
stated, the trial court was not being asked to consider whether a funeral
home or medical examiner was liable for its decision with respect to the
disposition of a decedent’s remains. Compare Matsumoto v. American
Burial and Cremation Services, 32 Fla. L. Weekly D26 ( Fla. 2d DCA Dec.
20, 2006) (addressing daughter’s suit against funeral home and
recognizing that section 497.005 does not impose a due diligence
requirement on the funeral home and that the applicable statutes dictate
the funeral home’s duties); Andrews v. McGowan, 739 So. 2d 132 (Fla.
5th DCA 1999) (lineal descendant sued funeral homes after one home
released the decedent’s remains to another without the personal
representative’s authorization); Jackson v. Rupp, 228 So. 2d 916 (Fla. 4th
DCA 1969) (next of kin sued medical examiner). See also McCrae v.
Booth, 938 So. 2d 432 (Ala. Civ. App. 2006). Collectively, those cases
indicate that the intent of those statutes is to guide the funeral home
operators by clearly delineating the priority of those persons who are
legally authorized to make funeral arrangements for a deceased person.
See also § 497.002(2), Fla. Stat. (2006) (noting the purpose and intent of
Chapter 497 expressly provides that subject to certain interests in
society, “the Legislature finds that every competent adult has the right to
control the decisions relating to his or her own funeral arrangements.”).



In this case, common law is dispositive. Kirksey v. Jernigan, 45 So.
2d 188, 189 (Fla. 1950); Cohen v. Guardianship of Cohen, 896 So. 2d 950
(Fla. 4th DCA 2005); Leadingham v. Wallace, 691 So. 2d 1162 (Fla. 5th
DCA 1997). Generally, in the absence of a testamentary disposition, the
spouse of the deceased or the next of kin has the right to the possession
of the body for burial or other lawful disposition. Kirksey. In Cohen, we
held that a written testamentary disposition is not conclusive of the
decedent's intent if it can be shown by clear and convincing evidence
that he intended another disposition for his body. Cohen looked to
decisions of other states which determined that whether to enforce the
will provisions regarding disposition of the testator's body depends upon
the circumstances of the case.



Having recognized certain property rights in dead bodies,
many courts have announced the rule that a person has the
right to dispose of his own body by will. However, courts,
while paying lip service to the doctrine of testamentary
disposal, have in certain instances permitted the wishes of
the decedent's spouse or next of kin to prevail over those of
the testator. In other instances, courts have accepted and
acted upon evidence that indicated that the decedent's
wishes concerning the disposition of his body had changed
since the execution of his will.



Id. at 953 (quoting B.C. Ricketts, Annotation, Validity and Effect of
Testamentary Direction as to Disposition of Testator's Body, 7 A.L.R.3d
747 § 1[b] (1966)).



Cohen noted that there were “no cases in Florida or across the
country in which a testamentary disposition has been upheld even
though credible evidence has been introduced to show that the testator
changed his or her mind as to the disposition of his/her body.” 896 So.
2d at 954. There, we found no abuse of discretion associated with the
trial court’s finding of the decedent’s intent. See also Leadingham. We
note that even under section 497.005(37), the first priority is to the
wishes of the decedent “when written inter vivos authorizations and
directions are provided” and that the remaining list of legally authorized
persons are those who are most likely to know and follow those wishes.
To the extent sections 497.005(37) and 406.05(4) provide guidance, the
priorities therein could set forth a presumption, rebuttable by clear and
convincing evidence of the decedent’s intent, as was the will in Cohen,
and as found here.



The “tipsy coachman” doctrine, allows an appellate court to affirm a
trial court that “reaches the right result, but for the wrong reasons” so
long as “there is any basis which would support the judgment in the
record.” Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002)(citing Dade
County School Board v. Radio Station WQBA, 731 So. 2d 638, 644
(Fla.1999)), which cited Applegate v. Barnett Bank of Tallahassee, 377
So. 2d 1150, 1152 (Fla. 1979).



Herein, the trial court found that “Anna Nicole Smith’s last
ascertainable wish with respect to the disposition of her remains was
that she be buried in the Bahamas next to her son Daniel Wayne Smith.”
This finding is not essentially disputed. In light of the trial court’s
extensive findings and comments associated with Smith’s intent, coupled
with the Guardian Ad Litem’s representation and commitment to a burial
in the Bahamas, we conclude that there is no need to remand the case
for further proceedings.



Affirmed.

No rehearing will be entertained and the Clerk of the Court is directed
to issue the mandate forthwith.



Judges STONE, POLEN AND SHAHOOD, JJ., concur.

* * *



Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Larry Seidlin, Judge; L.T. Case No. 07-00824(61).



Roberta G. Mandel of Stephens, Lynn, Klein, Lacava, Hoffman & Puya,
P.A., Miami, for appellant.



Christopher S. Carver and Richard C. Milstein of Akerman Senterfitt,
Miami, for Appellee-Richard C. Milstein.



June Galkoski Hoffman of Fowler White Burnett P.A., Miami, for
Appellee-Howard K. Stern.