(Vol. LXXX, 1970, pp. 53-55)
QUESTION: A surviving child desires to exchange the tombstone on her father's grave, presumably for a more elaborate one. She states that the proposed second tombstone conforms to a request that her father had made. Is it permissible to make such an exchange?
ANSWER: In general, it is deemed praiseworthy in the legal tradition to fulfill a behest of a departed parent. The Talmud, in Ta-anit 21a, states that "It is a mitzvah to fulfill the command of the departed." This mitzvah applies not only to the disposing of his estate, but also to matters relating to the funeral and to the grave. However, there is a definite restriction as to such requests. No request may be fulfilled which is contrary to the law. Thus, if a man says, "Do not have any funeral eulogies for me," this request must be fulfilled because the funeral eulogy is for the honor of the dead, and he may, if he wishes, say that he does not desire that honor. But if he says, "Do not bury me in the ground," this request may not be fulfilled, because it is contrary to the law, which requires that the body be buried in the ground.
Now, assuming that the father had requested or expressed a wish for some other type of tombstone than the one that is already on his grave, may this wish to substitute another tombstone be fulfilled? Is it permitted to exchange a tombstone once it is on the grave? The question involves the status of the tombstone: Is it an integral part of the grave (in which case it may not be removed, since it belongs, as it were, to the dead), or is it merely a convenience for the survivors so that they may easily find the grave? If it is merely the latter, then the survivors may do with the tombstone what they wish. They may take it down, put up another, or sell the old tombstone, since it is theirs and does not really belong to the grave. This basic question as to whether it is an essential part of the grave or not was discussed in relation to another tombstone question in Current Reform Responsa, pp. 149ff. But since the question asked here is really different from the one discussed there, it needs to be gone into once more.
Greenwald, in his compendium on funeral practices, Kol Bo, p. 385, leaves the matter unsettled as to whether a tombstone may be exchanged. The reason for his uncertainty is that the earlier sources are themselves divided on the larger question as to whether the living may consider the stone as theirs and may therefore benefit from it. Most of the discussion in the earlier sources is dealt with by Joel Sirkes ("The Bach") in the Tur, 364. And so Isserles to the Shulchan Aruch (the same reference) leaves the discussion open, saying: Some forbid the living to sit on the tombstone, but some differ; that is, it is not quite settled whether the tombstone belongs to the grave and therefore the living may not benefit in any way from it.
Interestingly enough, almost precisely the same question that is asked here was asked centuries ago and is referred to by Azulai in his Birkei Yosef, to Yoreh De-a 342. A widow was dissatisfied when she saw the tombstone that had been put on her husband's grave. She therefore ordered a larger tombstone, but wanted to turn in the smaller tombstone for credit on the cost of the larger tombstone. This was forbidden (namely, to turn in the smaller tombstone for credit), but there was no objection to her exchanging it for a larger tombstone, for that was for the honor of the dead.
So actually there is no real objection to substituting a larger tombstone. The real question is: What may be done with the first tombstone which has been removed? Since there is a large body of opinion among the scholars that the stone actually belongs to the grave, and that, therefore, the living may not benefit from it, there is a strong limitation as to what must be done with the original stone. This specific question has come up frequently. For example, the community of Budapest had to excavate a cemetery (on which it had only a lease), and it was left with tons of tombstones. It would have been too expensive to transport them to the new cemetery. Besides, where should they be placed there? (Cf. Responsum Maharsham Swadron II, 122.) A similar question arose in Italy: Owing to a lack of cemetery space, tons of earth to a considerable depth were spread to cover all the old graves so that bodies could be buried in the newly placed earth. The old tombstones therefore were not even visible. Perhaps they should have been left there buried, but they were removed from the graves before the new earth was put in. So again there was a question of what to do with the old tombstones. See Isaac of Aboab (Venice, 1610-1694) in his Devar Shemu-el, #342; also Menachem Azariah da Fano, Responsum #56 (rabbi in Venice, 16th century). The answer usually is given that the stones may not be used for private benefit (just as the aforementioned widow could not turn her husband's tombstone in for credit), but may be used for the benefit of the cemetery or other communal causes.
Therefore, the family--in the question asked here--may substitute a new stone, but the old stone cannot be sold. It may be given to some poor family to be rechiseled for use on its graves, or it may simply be buried somewhere else in the cemetery.
Solomon B. Freehof