THE incumbent in whom the ownership of a churchyard was vested
was criticised by the Chancellor for lack of diligence when he gave
permission for the replacement of a headstone without inspecting
the original one. Also, the Diocesan Advisory Committee (DAC) had
added to the cost and delay of later proceedings, Chancellor David
He was speaking in the Consistory Court of Sheffield when
granting a faculty to remove an illegally placed replacement
headstone and to install another one as similar as possible to the
The case concerned two headstones in the churchyard of St
Thomas's, Kilnhurst, over the grave of Frederick Howitt, who died
in May 1946, aged 28. The first headstone was placed there within a
year or two of his death. In 2002, it was replaced by a second
headstone of a more elaborate design, and with a different
John Howitt, the son of the deceased, was the petitioner for a
faculty for the removal of the second headstone, and its
replacement with a replica of the first one. The petition was
opposed by Mrs Kennedy, a cousin of the petitioner.
The parties were divided by a family feud, and, because they
gave very different accounts of the facts, the petition could not
be dealt with by written representations; so the Chancellor had to
The petitioner said that the original headstone was replaced by
his aunt, Edith Marshall, who told the then Vicar, the Revd Nigel
Elliott, that she was the next of kin of the deceased, and that
the petitioner and his mother were dead. The second headstone made
no mention of the petitioner or his mother, and the petitioner
wanted it replaced by a headstone that was as similar as possible
to the original one.
The law about churchyards and monuments is that the ownership
of a churchyard is vested in the incumbent, but a family may be
given the right to use a particular grave-space for burial. No
monument may be erected without the consent of the incumbent,
no monument may be removed without the grant of a faculty. The
person who installed the headstone by commissioning and paying for
it owned the headstone for life, and after the death of that
person, the heir at law of the person commemorated takes ownership
of the headstone.
The Chancellor heard evidence about the ownership of the
headstone, and what was inscribed on the first headstone. The
petitioner was less than three years old when his father died, and
Mrs Kennedy (as she now is) was aged one. They therefore had no
recollection of events at the time of the death of Frederick
Howitt. The petitioner relied on accounts given by his mother, who
died in 1986. Mrs Kennedy relied on the account given by the aunt,
Mrs Marshall, who died in 2010, and who had arranged for the first
headstone to be removed and the second one installed.
Mrs Kennedy said that it was the aunt who erected the original
headstone, and that the words inscribed on it spoke of the deceased
as "A dear father, son and brother". She said that, to her
knowledge, the petitioner had never visited the grave, and that she
and her aunt began the process of replacing the headstone. The
second headstone spoke of "A dear son and brother", only.
The Chancellor said, however, that the account given by the
petitioner was more likely to be true: that the widow of the
deceased owned the first headstone, and ownership had now passed to
the petitioner. The petitioner also said that the wording on the
headstone spoke of a "Dear husband and daddy" and produced a
photograph to confirm that.
The Chancellor said that he was satisfied that the petitioner,
who "spoke movingly of the fact that the grave was his one link
with the father of whom he had no memory", did visit the grave.
The Chancellor was also critical of the incumbent at the time,
who had granted permission for the installation of the second
headstone without realising that there was already one in place. He
had not inspected the existing headstone, and had "merely signed
the paperwork". If the Vicar had "been sufficiently diligent to
walk the necessary 100 yards, he would have realised that this was
not a routine case", the Chancellor said, "and a great deal of
trouble and expense would have been avoided".
When the petitioner discovered that the headstone had been
replaced, he spoke to the Vicar, who was distressed and apologetic.
He suggested that the petitioner should try to retrieve the
original headstone, but it had by then been destroyed. The
petitioner then discovered that he needed to get the matter
rectified, and that he needed to start with the DAC. But his
repeated efforts to obtain some definitive response from the DAC
The Chancellor said that the delay, which was the fault of the
DAC, gave "cause for great concern", but the passage of time did
not prevent the petitioner from seeking to remedy the unlawful
removal of the original headstone and its replacement by the stone
now located on the grave. The "whole lamentable record of delay and
inaction by the diocese and some of its office-holders came close
to denying justice" to the petitioner, the Chancellor said, and
added to the length and costs of the proceedings.
The faculty was granted to remove the second headstone and
install a replica of the first. The petitioner must, as is usual,
pay the court costs, which will be considerable. Mrs Kennedy will
bear her own costs.