LANCASTER LAW REVIEW. VOL. XXVII.] MONDAY, DEC. 13, 1909. [No. 6. Orphans' Court. O. C. OF LANCASTER COUNTY. Estate of John Kieffer, Deceased. Funeral expenses. Where a decedent died in the County Hospital intestate and without relatives, leaving an estate of nearly three thousand dollars to escheat to the state, an undertaker's bill of $876.30 should be reduced to $276.30 although the decedent had expressed a desire to be buried good." Only such sums should be allowed for funeral expenses as will bear a fair, just and reasonable proportion to the amount of the estate of the decedent and relation to his station in life. The rights of the state are to be considered no less carefully than those of heirs and next of kin September Term, 1909. No. 26. Howard J. Lowell for accountant. November 24, 1909. SMITH, P. J. John Kiefer died intestate June 15, 1907, leaving no wife nor descendants or ascendants. He was an inmate of the Lancaster County Hospital, from which place his body was taken for funeral purposes to the home of Charles Gross, the accountant. At the request of Gross, Undertaker Fred F. Groff supplied and did all things connected with the burial of the decedent. He was told that the decedent had an estate and that he had repeatedly said that when his end came he desired "to be buried good ", and at the same time expressed the wish that lawyers would not have an opportunity to wrangle over the effects. Groff says that he buried the decedent good, and for so doing asks to be paid the following bill: The casket, services, etc.. $700; the steel vault, $100; suit, $25; collar and cuffs, $1.50; shirt, $1; advertising in daily issues, $1.80; an of fering to the hospital attendants, $2; embalming the body, $10; conveying the body to home, $5; gloves for bearers, $1; shoes, $3; cross, $5; permit from soldiers' burial committee, $2; clergyman's offering $10; barber for shaving, $5; lady attendant and blanket, $5; total, $876.30. There ever have been fantasies associated with the dead body. Nothing to the dead, the sensibilities of the living only are affected, and the manifestations. are in the degree of their rationality, or their vanity and love of display. It may not be exactly correct to put it so strong as to say, it is not an unusual thing, but there have been cases where the living, craving for the sensation, have provided for a display, coincident usually with death, by erecting monuments of bronze and stone to themselves and by purchasing expensive caskets in which to have their bodies put when dead. Others by will make similar provisions, and this is not prohibited. It is altogether probable that this intestate was imbued with feelings which lead to such acts. Little doubt can there be that his intentions would not have miscarried had the whole of his estate been absorbed by the undertaker and monument-builder, but whatever his intentions, or however direct his declarations, he did not exercise his privilege in the way for their accomplishment. Death operates an absolute dissolution and severance of possessions. To the State, subject to whose powers the individual's property is held, it goes at his death unless there be those whom the State has preferred as inheritors. No less carefully are the rights of all the people-the State-to be conserved than those of the few defined as heirs and next of kin. It is not important what John Kiefer some time may have said or what some time he said his intentions were. We are not in a position to know what they were when he died, and if we did know, we could not carry them out if they were in conflict with the law. The claimant's position would not be any better as far as recovery from this estate is concerned Harry C. Rote, one day, city. if he had a written, executed agreement | Dr. W. J. Stewart, one day, city.. It has been decided that nobody shall be buried with the burial of an ass, drawn and cast forth beyond the gates of the city. Neither is any one, according to custom, or any religious rite, entitled to more than a decent Christian burial'." The Court said in Cullen's Estate, 8 Superior Court 494, "Only such sums will be allowed for funeral expenses as will bear a fair, just and reasonable proportion to the amount of the estate of the decedent and relation to his station in life". In Bradley's Estate, II Phila., 87, it was held that extravagant funeral expenses would not be allowed even if they were in proportion to the value of the estate. An undertaker's bill of $331 was reduced to $225 in an estate of $8,160: Bauman's Estate, 5 C. C. R., 579. In one of $1,500, where only that was furnished which had been ordered, the bill was cut down from $447 to $150: Hassen's Estate, 19 Phila., 24. Extravagance in funeral expenses is regarded as a species of waste"; and the courts will not countenance a silly exhibition by ordering bills for it to be paid. See Bard's Estate, 21 LANCASTER LAW REVIEW, 81. This estate escheats, and therefore the reason is strong for not approving an expensive funeral show, for there were no bereaved relatives to enjoy the display. The benefit coming to all the people far outweighs that to the gaping few who may have been dazzled by the wonders of the undertaker's art. It is doubtful if these derived any benefit; more likely is it that the influence of the example was injurious. The charge for each item in the claimant's bill is allowed except the one for the casket, services, etc., $700-on account of this one $100 is awarded. This is an unusual case and can hardly be taken as a precedent; it would set the standard of measurement too high. Witness fees allowed: Clerk of Orphans' Court, subpoena... Total .... Balance due estate as appears by ac- Less witness fees. $1.00 1.00 1.00 1.00 3.50 .30 $7.80 $2,935.38 7.80 Leaves balance for distribution...... $2,927.58 DISTRIBUTION. To Fred F. Groff, creditor... $276.30 Proceedings to escheat and the audit were conducted together, connectedly, and they will be treated as constituent parts. It has been shown that John Kiefer died intestate, leaving no widow nor known kindred. Upon information that this estate "hath escheated or is supposed to have escheated", the Auditor General of the Commonwealth of Pennsylvania commissioned Howard J. Lowell, Esq., as a suitable person, resident of the county where the estate is, to act as escheator. Having heard and taken testimony in compliance with the Act of May 2, 1889, P. L., 66, defining and regulating escheats, we find: First, That "an escheat hath OCcurred." Second, The manner and cause of the escheat were that John Kiefer died intestate, leaving no kindred nor surviving widow. Third, That the balance of the estate is personalty and is of the value of $2,651.28. Howard J. Lowell, the escheator, is directed to file in this Court a bond to the Commonwealth of Pennsylvania with sufficient security, conditioned for the faithful performance of his duties as escheator and that he will faithfully account for and pay over to the State Treasurer the funds which shall come into his possession as escheator. Whereupon we award to him for and on behalf of the Commonwealth of Pennsylvania, $2.651.28. It is ordered and decreed that Charles Gross, administrator as aforesaid, do pay the amounts, as herein directed, to those respectively entitled to the same. This report is confirmed nisi. O. C. OF LANCASTER COUNTY. Estate of Charles H. Locher, Deceased. Rule on attorney to pay over moneys. The court can not make an order on the counsel of a former administrator of a de cedent to pay over certain moneys of the estate in his hands. In such case there would seem to be a responsibility resting upon the administrator d. b. n. which if not properly met might make a surcharge unavoidable. February Term, 1908. No. 30. though it corresponded in amount with the sum claimed in the account as administrator's compensation, that no part of it was likely ever to become his. Charles H. Burr was simply the depository of part of the funds of the estate of Charles H. Locher, deceased, which the Court distributed, and which he kept. But it is no more within the province of this Court to order him to pay than it would be to order a banking institution to pay because moneys of an estate were deposited with it. Such an order would be inoperative, a nullity. Nevertheless, this money should not be lost to the estate. There appears to be a responsibility resting upon the administrator d. b. n. of the estate of Charles H. Locher, deceased, which, if not proOpinion by perly met, might make a surcharge unavoidable. Rule to make order on Charles H. Burr, Esq., to pay over money belong ing to estate. Coyle & Keller and John E. Malone, for rule. The rule is dismissed at the cost of On the petition of J. H. Rathfon, Receiver of the City Saving Fund and the petitioner. Trust Company, a rule was granted to show cause why Charles H. Burr, Esq., a member of the Philadelphia Bar, Common Pleas - Equity, should not pay to the administrators of the estate of Charles H. Locher, deceased, or to the petitioner, $3,700.00, money in his keeping alleged to belong to the estate. At the request of Mr. Burr's partner-at-law proceedings on the rule were suspended that time might be had in which to raise the money. Assurances were given that it would be paid at the expiration of three months. Charles H. Burr's promissory note was offered, but his partner's statements were accepted as a sufficient guaranty. The time has past and the money has not been paid. It will not be denied that Charles H. Burr, Esq., received this money. He was counsel for David R. Locher, the acting administrator of the estate, and advised as to its management. Together they manipulated its funds. He alleges in his answer that David R. Locher owed him money and that he credited him on account of his debt with this or a part of it. Assuming him to be a counsellor of worth, the incompatibility of such a course must be apparent to him. The money was not David R. Locher's, and he knew, or ought to have known, = C. P. OF LANCASTER COUNTY. Slaughter house-Injunction. The erection and maintenance of a butcher shop and slaughter house in a fairly thickly prima facie a nuisance, and when disagreeable populated residential section of a town is odors and noises are produced which disturb neighboring residents is a nuisance per se, and an injunction may issue to prevent the conduct of the business in that location in such manner as to produce such objectionable odors, noises vibrations, etc. A lawful business becomes a nuisance when improperly located or conducted. An undoubted substantial injury to a right of property will be redressed in equity where there is no adequate remedy at law without regard to the inconvenience or damage the wrongdoer may sustain. Equity Docket, No. 3, page 383. Final hearing. C. E. Montgomery and Wm. R. Brinton, for plaintiff. Coyle & Keller, for defendant. P. J. June 16, 1903. Opinion by LANDIS, mediately back of it on the same side, was a cattle pen eight feet by ten feet. Back of the cattle pen was a small brick building, which has now something of a stack to it and is used for the purpose of rendering tallow. There was also a smoke house, and, extending still further to the east, a woodshed, and, east of the woodshed, a hayloft, a hide room and a stable in succession, all connected together. Immediately east of the stable, along a fourteen feet wide public alley, was a pit, to which more particular reference will hereafter be made. These buildings were ranged along the north side of the lot. To the south side, apparently covering all the lot from the west end of the cattle pen to the alley, was frame shedding. FINDINGS OF FACT. The plaintiffs and the defendant all reside on the east side of South Charlotte street, in the borough of Manheim, each living in and occupying his or her own residence. Mrs. Hackman owns the southernmost house, Mr. Hertzler's adjoins hers on the north, and Mr. Becker's is immediately north of Mr. Hertzler's. The Hertzler property is, therefore, the middle property. The frontage of the Hackman property is fifty feet, of the Hertzler property twenty-six feet, and of the Becker property fifty-seven feet. The depth of all of the lots is shown by the deeds to be two hundred and fifty-seven feet, but it may be that, by actual measurement, it is somewhat deeper. Mrs. Hackman's house consists of a threestory brick dwelling, with brick back building attached, to which is added an open porch, extending along Mr. Hertzler's line. This house was built at least twenty-seven years ago and is a companion house with that of Mr. Hertzler's. Mr. Hertzler has also a three-story brick, with brick back buildings, and both this and the Hackman house have basements. The division walls between the two are but lath and plaster. Mr. Becker's house is a large two-story and mansard roof brick dwelling, with brick back building, and there is some open ground between it and the Hertzler house. Mr. Hertzler uses his property not only as a dwelling-house for himself and his family, but also in the carrying on of the butchering business. The other houses are used merely as dwellings. In conducting his business Mr. Hertzler uses the front room in the base-, ment for the retailing of meat. In his lot, away from his buildings, he had erected, along the line of Mr. Becker, a number of frame buildings, some of which still remain. There was what has been called in these proceedings the old slaughter house, located about the middle of the lot and being in size about twenty feet by twenty-five feet. This house was about seventy-five feet from Mr. Becker's building and about sixty feet from those of Mrs. Hackman, and, im There are All of the properties thus owned by these plaintiffs and defendant lie on said South Charlotte street, between Ferdinand and Stiegel streets. The length of the block is nine hundred feet, and it is occupied on both sides by from thirty-five to forty houses. no business places in the square except the Hertzler butcher shop and a corner grocery. A place for butchering on the south side of the street, formerly occupied by a Mr. Fahs, which was, however, abandoned by him some time ago, has, since the injunction granted in this case, been used by the defendant. Farther up the street one J. C. Ritter, on the rear end of his yard, dealt sometimes in produce and calves, but he is not carrying on now, and the front part of his building was never used for any such purpose. From these facts, therefore, it can fairly be found that this is a thickly-populated locality in the said borough of Manheim, and that it is used almost exclusively for residential purposes. Mrs. Hackman is a widow, and ordinarily resides in her home with her three sons. In the summer months, however, her single daughter comes and spends her vacations there. Mr. Becker's family consists of himself and his wife and three small children and his wife's two sisters. The Becker house was built in 1882, and it has been owned by Mr. Becker for the last eight years. The Hertzler property has been used for butchering purposes since 1886, and was formerly conducted by a Mr. Sharp, but Mr. Hertzler has owned and used it for the last six years. When he first came he asked Mr. Becker to be patient and he would try to keep his place clean; that “he don't have very much finances, he would not like to ruin himself, and he would be, so that he could protect his friends that have been helping him." Mr. Becker then responded that if he (Hertzler) would try to keep it clean he (Becker) would be patient with him, and, Mr. Becker adds, "We have been patient with him now for six years, and he has been keeping a very careless place so that it was intolerable to be about." The evidence which has been presented, and some of which at least is admitted by the defendant to be correct, is that prior to March, 1902, the defendant slaughtered his cattle in the old slaughter house. He had two bull dogs, and, with these, he used to drive the cattle from the cattle pen to the slaughter house. They, at such times yelping and barking, created considerable annoyance. This, however, was only of a temporary character. The defendant killed his cattle from two to six times a week, averaging, as he says, four times a week -steers, hogs, calves and cows-and he states that he slaughtered them in the afternoon or at least not later than half past seven o'clock in the evening, on account of not being able to get them from Lancaster in time; that in the morning he killed hogs, and he might have killed them several times as early as five o'clock. The plaintiffs, however, testify, that he would put two or three cattle at a time in the cattle pen the night before, and, while he killed mostly in day-time, he, upon occasions, butchered as early as two or three o'clock in the morning and as late as nine o'clock at night. Conceding, then, the defendant's honesty as a witness—and I have no doubt that he meant to tell the truth-his daily environments were such as would be likely to little impress him with many things naturally very unpleasant to those who did not come in daily contact with them. For this reason such persons were likely more observant, and more able accurately to remember what transpired than he. Where differences of this kind arise in the testimony it would seem not to be viewing the facts with undue bias against him if their views, instead of his, were deemed most worthy of credence. Especially are we led to this conclusion when they, and not he, are so evidently the sufferers. All parties agree that the cattle and hogs were either hit on the head with a hammer or shot. The noises of the killing, whether either method was pursued, were plainly heard in the adjacent houses. To this was added the hauling and carrying of the meat and tallow to their proper places, which noises, though perhaps of no consequence in the daytime, could scarcely help but be extremely disturbing to the sleeper either at a late or very early hour. The slaughter house was connected by terra-cotta pipes with the pit. Through these pipes drained the blood and water, and into the pit were also thrown the intestines and offal, and these were there afterwards covered over with manure. This pit was six feet by twelve feet and was dug to rock and walled up on the sides. It had no closed bottom and no top. It was cleaned out at intervals of from four to six weeks, and several times Mr. Hertzler exploded dynamite in it to cause the liquids to sink away. The stench that arose from the slaughter house and from other parts of the premises, especially from the pit, was such as any one might imagine would ensue under such circumstances, and the smell was particularly offensive when the pit was emptied. It was described by one of the witnesses as horrible, and we can easily conceive it to have been so. At times the windows of those residing in the neighborhood had to be closed so that they could sleep. This happened frequently on summer nights. Mr. Becker testifies that even in the early morning his rooms had to be aired to get rid of the odor which penetrated into them during the night. According to Mrs. Hackman some of her food, which she had placed in the cellar, became tainted. The proprietor |