CURR 145-149


A mother in the United States has made provision in her will to be cremated, and that her ashes be buried in her son’s grave in Venezuela. She has communicated with the congregation in Venezuela, but they informed her that they would be willing to put a stone urn containing the ashes upon the top of the grave (or in a niche above ground cut into the tombstone). But they would not bury the ashes and would not open the grave. Are there any precedents or reasons in the Halachic literature which might convince them to accede to this mother’s request? (Asked by Rabbi Robert I. Kahn, Houston, Texas.)

THIS, of course, is not a question for guidance as to our own practice, since we already have an established custom of cutting a small space in a grave to bury ashes of a relative. The question is primarily for information as to the traditional Halacha, asked in the hope of convincing the Venezuelan congregation to grant this woman’s request.

As for the burial of the ashes of cremation, I have already discussed this in a previous letter to you. But now I will add the opinion of some Orthodox authorities permitting the burial of such ashes. The chief opinions against such burial were collected by Rabbi Lerner in his book, Chaye Olam. But, as I mentioned previously, Elijah Benamozegh, Rabbi of Leghorn, in his Ya’aney Vo-esh, said that while it is against Orthodox law to cremate, nevertheless, it is a duty to bury the ashes. Now I add the following: Enoch Ehrentreu, in Cheker Halacha, permits the burial of the ashes, as does also Simon Deutsch, in Or Ho-emes, who said also that ashes were buried in the Frankfurt cemetery at the express direction of Azriel Hildesheimer, the leader of German Orthodoxy. See also David Hoffman (Melamed L’ho-il, Yore Deah, 113) who says that while it is not obligatory to bury the ashes, it is not forbidden to do so.

Now as to the refusal of the Venezuelan congregation to open the grave: In this matter they rest on firm traditional authority but, even so, there are strong Orthodox opinions permitting the opening of graves under certain special circumstances. (A full discussion of the question is to be found in Pis-che Teshuva to Yore Deah 363:7 and in Greenwald, Kol Bo Al Avelus, p. 217 ff.) The law seems clear that graves, once they are filled up, should not be opened again {Yore Deah 363:7). This law is based primarily upon a decision in a specific case, made by Rabbi Akiba in b. Baba Bathra 154a. Some property had been sold and the seller died. Relatives claimed that the deceased was a minor, so could not legally have sold the property. They wanted to exhume the body to prove their case. Rabbi Akiba forbade this and said: “You are forbidden to show his ugliness,” (l’navlo) i.e., to shame the deceased by looking at the ugly decay of his body.

But this prohibition of Rabbi Akiba forbids only the uncovering of the body, but does not forbid any opening of the grave which would not reach or disturb the body at all. To forbid the opening of the grave altogether, an additional principle was invoked: namely, that the very disturbing of the grave brings to the consciousness of the deceased (the dead having awareness) a fear that he is being subjected to punishment (cherdas ha-din). This idea is somehow based on the statement cf the ghost of Samuel to Saul at Endor: “Why hast thou disturbed and troubled me?” (I Samuel 28:15) and on the statement of Job (3:13): “Then I shall sleep (in death) and be at peace.”

Yet, though the law in the Shulchan Aruch, thus based, seems clear and definite, nevertheless in the very same section of the Shulchan Aruch {Yore Deah 363:1) we are told that a body may be removed from its grave in order to be buried in the burial place of the family (363:1). Thus it is clear that there is at least this exception to the general prohibition. In fact, there are many more exceptions which will now be listed.

David Oppenheimer, rabbi of Prague, in his large responsum at the end of Bachrach’s Chavos Yair, cites a decision of Rabbi Gerson of Metz (the author of Avodas Ha-Gershuni) in the following case: Two brothers were buried hastily and it was remembered that they were buried without the required shrouds. May the graves be opened in order to provide the shrouds? Rabbi Gerson said that the grave of the older brother, who was over twenty-one, may not be opened because the “judgment” and, therefore, the “fear of judgment” (cherdas ha-din) only applies after the age of twenty. Therefore the younger brother, who was under this age, may have his grave opened for the shroud. Also, Jacob Reischer, rabbi of Metz (Shevus Yaacov II, 113) answered a pathetic question from the city of Brussels. Some ghouls had dug up some graves in the Jewish cemetery, stolen the shrouds and thrown the bodies on the ground. Some relatives feared (because of a dream in which the dead appeared to them) that other bodies were treated in the same way. Jacob Reischer gave permission to dig up those graves to make sure.

Another reason for some authorities permitting exhumation was in order to free a woman from the state of being an agunah. A woman suspected that it was her husband whose body was buried in another city. She said that he had carried certain proofs upon his body (in his wallet, etc.) of his identity. She wanted the body examined for this proof, so that she could be declared a widow and be free to remarry. Ezekiel Katzenellenbogen (in Kenneses Yecheschel, Even Hoezer, 46) at the very top of column “b” on page 57, permits such examination. So did Eleazar Fleckeles cited in Shivas Zion, 64. Fleckeles later changed his mind about his decision when he thought that this body was probably not of the husband and, therefore, it would be wrong to disturb the body of a stranger to no purpose. There are indeed prohibitory opinions in all these cases cited, but it is important that great Orthodox authorities permitted exhumation for certain reasons which appeared sufficient for them.

But there is a more general consideration for allowing the granting of this woman’s request. It was the well-established custom in many of the old world Jewish communities to bury one body above the other. There were great rabbis in these communities who would have objected, had there been any objection, to opening a grave for a sufficiently good reason, particularly to bury another body. Of course, it was understood that they did not dig far enough to disturb the first body. How near could they get to the first body without violating the law? See Kol Bo by Greenwald, p. 179, where he states the generally accepted rule that where bodies are buried side by side there must be a partition of six hand-breadths; where bodies are buried one above the other (and therefore the partition, being compressed, would not fall away) three hand-breadths are sufficient. It is therefore an unquestioned practice to dig into a grave to within three hand-breadths of the previous body in order to perform a second burial.

This is, perhaps, a solution of the problem which will satisfy both the congregation and the woman who is making the request. This solution is based upon a decision of one of the strictest rabbinical authorities of the past generation, the Orthodox Rabbi of Muncacz, Eliezer Shapiro (“Der Muncaczer”). In his responsa, Minchas Eliezer, IV, 4, he reports the following question: A scholar had provided in his will that his writings be buried in his grave with him. For some reason, at the time of his burial, they had neglected to carry out his request. May they now open the grave to bury the writings of this scholar with him, as he had requested? Eliezer Shapiro mentions all the classic reasons for not opening the grave, but says that the space underneath the tombstone can be considered part of the grave and yet that space may be fully excavated to provide a place for the scholar’s writings.

On the basis of opinion of this strictest of Hungarian Orthodox rabbis, the Venezuela congregation can dig a space underneath the tombstone for the urn or box of ashes. This would not be a violation of disturbing the grave and yet would be part of the grave. You might suggest this solution.