In event of damage to grave of deceased person, right of action, if any, is first in surviving husband or wife, and if there is no surviving husband or wife then the right is in the next of kin in order of their relation to decedent. Southern Life Health Ins. Co. v. Morgan, 21 Ala. App. 5, 105 So. 161, 168; Ex parte Southern Life Health Ins. Co., 213 Ala. 413, 105 So. 168; Jefferson County Burial Soc. v. Scott, 218 Ala. 354, 118 So. 644; Jordan Undertaking Co. v. Asberry, 230 Ala. 97, 159 So. 683; Gostkowski v. Roman Catholic Church, 262 N.Y. 320, 186 N.E. 798; Johnson v. Kentucky-Virginia Stone Co., 286 Ky. 1, 149 S.W.2d 496; North East Coal Co. v. Wells, 253 Ky. 11, 68 S.W.2d 760; Smith Gaston Funeral Directors v. Wilson, 262 Ala. 401, 79 So.2d 48; Smith Gaston Funeral Directors v. Dean, 262 Ala. 600, 80 So.2d 227. In trespass for injury to common property all tenants in common must join as plaintiffs.
Restatement (Second) of Torts § 868 (1979); Annot., 48 A.L.R.3d 240, 245 (1973); Annot., 48 A.L.R.3d 261, 264 (1973); see Dumouchelle v. Duke University, 69 N.C. App. 471, 317 S.E.2d 100 (1984); Simpkins v. Lumbermens Mut. Casualty Co., 200 S.C. 288, 20 S.E.2d 733 (1942). This is usually the surviving spouse, Steagall v. Doctors Hospital, 171 F.2d 352 (D.C. 1948); Southern Life Health Ins. Co. v. Morgan, 21 Ala. App. 5, 105 So. 161 (1925); Edwards v. Franke, 364 P.2d 60 (Alaska 1961); Pollard v. Phelps, 56 Ga. App. 408, 193 S.E. 102 (1937); Finn v. City of New York, 70 Misc.2d 947, 335 N.Y.S.2d 516 (1972), reversed on other grounds, 76 Misc.2d 388, 350 N.Y.S.2d 552 (1973); Apostle v. Pappas, 154 Misc. 497, 277 N.Y.S. 400 (1935); Pettigrew v. Pettigrew, 207 Pa. 313, 56 A. 878 (1904); Annot., 48 A.L.R.3d 240, 243 (1973), provided that he or she was living with the decedent at the time of death, Southern Life Health Ins. Co. v. Morgan, supra; Steagall v. Doctors Hospital, supra; Teasley v. Thompson, 204 Ark. 959, 165 S.W.2d 940 (1942), and has not waived his or her right. Southern Life Health Ins. Co. v. Morgan, supra; Teasley v. Thompson, supra; Apostle v. Pappas, supra; Gostkowski v. Roman Catholic Church of Sacred Hearts of Jesus and Mary, supra. If the spouse is deceased, the cause of action passes to the next of kin, in order of relation established by the statute governing intestate succession. Teasley v. Thompson
The plaintiff, being the nearest relative present, is a proper party to bring the action in tort, irrespective of any other possible theory of recovery. Southern Life Health Ins. Co. v. Morgan, 21 Ala. App. 5, 105 So.2d 161, cert. denied, 213 Ala. 413, 105 So. 168 (1925). Appellees allege, as another ground for affirmance, however, that appellant's non-trespass claim is barred by the applicable one year statute of limitations.
The plaintiff, being the nearest relative present, is a proper party to bring the action in tort, irrespective of any other possible theory of recovery. Southern Life Health Ins. Co. v. Morgan, 21 Ala.App. 5, 105 So. 161, cert. denied, 213 Ala. 413, 105 So. 168 (1925). Appellees allege, as another ground for affirmance, however, that [the plaintiff]'s non-trespass claim is barred by the applicable one year statute of limitations. . . .