Bradley's Estate, In re

• Decision Date: 06 May 1966
• Parties: In re BRADLEY'S ESTATE. Application of John Bradley, for Limited Letters of Administration of the Goods, Chattels and Credits which were of 'Baby Boy' Bradley, Deceased. Surrogate's Court, Nassau County
• Court: New York Surrogate Court

Page 657

269 N.Y.S.2d 657

50 Misc.2d 72

In re BRADLEY'S ESTATE.

Application of John Bradley, for Limited Letters of

Administration of the Goods, Chattels and Credits

which were of 'Baby Boy' Bradley, Deceased.

Surrogate's Court, Nassau County.

May 6, 1966.

Michael J. Roe, North Massapequa, for petitioner.

JOHN D. BENNETT, Surrogate.

Petitioner has applied for limited letters of administration for the purpose of instituting a wrongful death action for fatal injury to a foetal child, stillborn in the eighth month of his mother's pregnancy.

Letters of administration may not issue unless there is a deceased person whose property requires administration. Pursuant to section 89 of the Surrogate's Court Act, a wrongful death action constitutes such property, as a general rule. The Court of Appeals in Butler v. Manhattan Ry. Co. (143 N.Y. 417, 38 N.E. 454, 26 L.R.A. 46) has held, however, that there is no wrongful death action for fatal injury to a foetal child due to the remote and speculative character of the damage.

Surrogate Frankenthaler, in Matter of Logan (4 Misc.2d 283, 156 N.Y.S.2d 49, affd. 2 A.D.2d 842, 156 N.Y.S.2d 152, affd. 3 N.Y.2d 800, 166 N.Y.S.2d 3, 144 N.E.2d 644), presents a concise exposition of the development of our law in respect to actions for prenatal injuries, pointing out the gradual trend away from the rule of Drobner v. Peters (232 N.Y. 220, 133 N.E. 567, 20 A.L.R. 1503) which precluded such suit until the formulation of the rule set forth in Woods v. Lancet (303 N.Y. 349, 102 N.E.2d 691, 27 A.L.R.2d 1250) which permits suit by a child born alive for injuries suffered in the womb. In that case, as in this, the petitioner relied mainly on the decision in Woods v. Lancet (supra) to support his claim for letters, on the reasoning that if the law holds that a viable foetus is a separate person 'in esse' to whom a tortfeasor owes a duty of care, an action consequently lies for the death of said person. However, this court concurs in Surrogate Frankenthaler's opinion as stated on pages 285 and 286 of 4 Misc.2d, on page 51 of 156 N.Y.S.2d, that '(t)his argument overlooks the fact that the precedents denying a death action on a stillbirth do not turn on whether the dead foetus was a being in esse. The force of Judge Andrews' reasoning in Butler v. Manhattan Ry. Co. (supra), remains unimpaired by the Woods case. Acknowledging that the wrongful death statute permits suits in behalf of parents to recover the financial loss attributable to the death of a very young child, he noted that it is extremely difficult to estimate damage in those cases, but that 'where the injury relates to the value of the life of a child cut off in infancy' at least some facts can be definitely proved to aid in estimating damage. 'The age and sex of the infant may be proved, its mental and physical condition, its bodily strength, and...