Court: Sherman Hemsley Won't Be Dug Out From Grave

The fact that the late actor is already buried counts for something

Actor Sherman Hemsley died in July 2012 of lung cancer at the age of 74, but he was not buried for four months thanks to a dispute between the business manager he lived with and a long-lost half-brother who each claimed the right to dispose of his remains. Hemsley, best known for his role as George Jefferson, was finally buried in El Paso, Tex., in November 2012, but the dispute continued for two years thereafter until late last week. A Texas appeals court has decided that it is best to leave Hemsley in the spot where he now rests in peace.

A month before he died, Hemsley executed a will and named "beloved partner" Flora Enchinton Bernal — his business manager and best friend — as the sole beneficiary of his estate.

At the morgue, however, a medical examiner used Hemsley's cell phone to locate his next of kin and called Richard Thornton, who told the caller that he was Hemsley's brother. (The two apparently shared a father, a Methodist minister who had an affair.)

Based on the information, the medical examiner released Hemsley's body to Thornton, who wanted to have the late actor's body taken from a funeral home in El Paso to be buried in Pennsylvania.

Bernal then filed an application to probate the will, which Thornton contested on the ground that Hemsley was not of sound mind when he made the will.

A probate judge then ruled that Hemsley had the capacity to execute the will and that he was not subject to any undue influence at the time the will was executed. Although a DNA test confirmed Thornton's relationship to Hemsley, the judge ruled that it was admissible only for the limited purpose of establishing a right to inherit.

And so, Hemsley was buried, but it didn't end the dispute because Thornton filed an appeal.

On Nov. 12, the Court of Appeals for the 8th District of Texas reviewed the evidence, including testimony from multiple witnesses who knew the actor prior to his cancer diagnosis and on the day he executed his will. The appeals court concludes it is "legally sufficient to support the probate court's finding."

Thornton also argued that the trial court had erred by allowing Bernal to determine the disposition of Hemsley's remains because she isn't a relative and the actor hadn't left written instructions or designated the person to dispose of his remains. Bermal responded that the issue was moot because Thornton hadn't failed to suspend the judgment, and so Hemsley had already been buried.

Although Thornton's lawyer proclaimed the issue as not moot because there wasn't anything in the appellate record that Hemsley had been buried, the appeals court uses its discretion to point to news reports to confirm that yes, Hemsley is residing in an El Paso cemetery.

"By permitting Bernal to proceed with the funeral, the Thorntons not only failed to preserve the status quo, they allowed Bernal to exercise the right to dispose of the remains," states the opinion from the Texas appeals court. "The controversy between the parties now includes the question whether the Thorntons have a right to remove the remains."

Ultimately, the fact that the former George Jefferson is already in the ground is the key. The judge agrees with Bernal that the issue is moot. Hemsley won't be moving on up.

As the appeals court puts it, "We conclude that Bernal’s exercise of the right effectively extinguished any right which the Thorntons might have had to control disposition of the remains. Even if we assume for the sake of argument that the Thorntons are correct that they, rather than Bernal, had the right to determine the disposition of the remains, our decision could not have any practical legal effect on the existing controversy because interment has already taken place."

Email: Eriq.Gardner@THR.com
Twitter: @eriqgardner

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