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Mannheimer v. Wolff

DECEMBER 10, 1962.

HAZEL MANNHEIMER, PLAINTIFF-APPELLANT,

v.

ALLAN I. WOLFF, JR., JOHN B. WOLFF, KATE H. KOHN AND ROSEHILL CEMETERY COMPANY, DEFENDANTS-APPELLEES.



Appeal from the Superior Court of Cook County; the Hon. WALKER BUTLER, Judge, presiding. Affirmed.

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

Rehearing denied December 28, 1962.

This a controversy involving uniformity of floral decorations on a cemetery lot which now contains 12 graves, and which has room for 7 more. Plaintiff seeks to enjoin the performance of a perpetual decoration contract which provides for decorations on two of the graves different from those on the other 10 graves; in the alternative, she seeks a mandatory injunction ordering the removal of one of the bodies from the lot. Plaintiff appeals from a decree allowing defendants' motion for summary judgment and dismissing the suit for want of equity.

There is no question of fact involved. The record shows that in 1886 Simon Yondorf purchased a burial lot in Rosehill Cemetery; the lot was 20 feet in depth, with front and rear dimensions of 36 and 38 feet respectively. During his lifetime, he buried his parents and an infant daughter in the lot. In 1915, Simon Yondorf himself was buried in the lot. His heirs at law were his widow and three children, one of whom is the plaintiff, Hazel Mannheimer.

In 1918, all of the heirs of Simon Yondorf, including plaintiff, joined in the execution of a quitclaim deed which purported to convey both to Charles Yondorf and to August Yondorf (brothers of the deceased Simon Yondorf) an undivided one-third interest in such cemetery lot, "to have and to hold the above granted premises as a place of interment, only subject to the rules and regulations and restrictions set forth in original deed from Rosehill Cemetery to Simon Yondorf, it being the intent of the parties, both grantors and grantees, that the grantors herein and their heirs, representatives and assigns and each of the grantees herein and their respective heirs, representatives and assigns shall have an undivided one-third interest in and to said lots hereinabove described." This deed was entered upon the records of Rosehill Cemetery on or about June 3, 1918.

Prior to 1928, burials made in the lot were: Dora Yondorf, the wife of August Yondorf (1920); August Yondorf (1921); Grace Yondorf, the wife of Charles Yondorf (1923); and Minnie Yondorf, the widow of Simon Yondorf (1927).

In 1928, Charles Yondorf, under the 1918 quitclaim deed, executed an irrevocable "right of burial" in the lot in favor of David Yondorf and his wife Ida M. Yondorf. In 1931, Charles Yondorf was buried in the lot. In 1938, David Yondorf was buried in the lot pursuant to the right of burial executed in 1928 by Charles Yondorf; in February 1959, Ida M. Yondorf (widow of David Yondorf) was buried in the lot pursuant to the 1928 right of burial.

At various times contracts were entered into with Rosehill Cemetery providing for perpetual floral decorations on the graves of all of the individuals then buried in the lot. The decorations provided for are identical; they consist of planted flowers in the summer and evergreens in the winter.

On the death of Ida M. Yondorf in 1959, her defendant executors contracted with defendant Rosehill Cemetery to provide perpetual floral decorations on the graves of Ida and her husband, David Yondorf, pursuant to her will and an order of the Probate Court of Cook County. This was done in implementation of Article Two of her will, which provides:

"It is my desire that after my death there be proper provision for permanent floral decoration of the graves of my husband and myself. If I have not made arrangements to such effect during my lifetime then I authorize my executors to deposit with Rosehill Cemetery Company such an amount as my executors deem reasonably necessary to level the graves of my husband and myself and to have fresh flowers set at the head of the graves of my husband and myself from time to time during the spring, summer and early fall months of each year, and to have the graves covered with evergreen during the winter months."

The contract provides for cut flowers on the graves of Ida and David Yondorf from the last Sunday in May for 16 consecutive Sundays, followed by evergreen decorations and an artificial wreath (the latter placed between the graves) during the winter months.

This contract is the focus of the controversy before us. Plaintiff seeks to enjoin its performance, or, in the alternative, to compel the defendants to disinter the body of Ida M. Yondorf and to remove it from the burial lot.

According to plaintiff's brief, her purpose "in this suit is to achieve attractiveness and harmony and sensible decoration" of the whole burial lot. The lack of uniformity in the decoration of the various graves, of which plaintiff complains, is as follows: the summer decorations on the graves of Ida and David Yondorf consist of cut flowers, while those on the rest of the graves consist of planted flowers; the winter decorations on the graves of Ida and David Yondorf are evergreens of a size and shape different from those on the other graves; and finally, during the winter months a wreath is placed between the graves of Ida and David Yondorf, while none of the other graves have wreaths upon them.

At the outset, we do not agree with defendants' contention that this is a proper case for the application of the maxim de minimis non curat lex (the law does not concern itself with trifles). We believe that a court of equity may properly consider any matter which so deeply engages the feelings of ...


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