Harding v. DeAngelis, 94-P-192

• Citation: 39 Mass.App.Ct. 455,657 N.E.2d 758
• Decision Date: 29 November 1995
• Docket Number: No. 94-P-192,94-P-192
• Parties: James A. HARDING v. Evelyn DeANGELIS, administratrix.
• Court: Appeals Court of Massachusetts

Page 758

657 N.E.2d 758

39 Mass.App.Ct. 455

James A. HARDING v. Evelyn DeANGELIS, administratrix.

No. 94-P-192.

Appeals Court of Massachusetts Norfolk.

Submitted Dec. 12, 1994.

Decided Nov. 29, 1995.

Douglas H. Krabbenhoft, Randolph, for plaintiff.

Before ARMSTRONG, SMITH and GREENBERG, JJ.

ARMSTRONG, Justice.

The petitioner is the father of an illegitimate child who was stillborn as the result of an automobile accident. Seeking to share equally with the mother in the proceeds of a wrongful death claim prosecuted by the child's administratrix, the petitioner asks that the administratrix, the child's maternal grandmother, be ordered to make distribution of half of the net proceeds to him. He appeals from a decree of a Probate Court dismissing his petition for distribution.

The mother and father of the stillborn child were high school students, seventeen years of age and eighteen, respectively, at the time of the accident. The mother was in the third trimester of her pregnancy, and the child was viable prior to the accident. Medical testing the evening of the accident determined that there was no fetal heartbeat. Labor was induced, and the child was delivered stillborn that night. The next day the hospital filed a report of fetal death, as required by G.L. c. 111, § 202. For reasons which do not appear, a certificate of live birth was also executed and filed. ¹ The birth certificate listed the plaintiff as father and was signed by him, the mother, and the attending physician.

The decision in Mone v. Greyhound Lines, Inc., 368 Mass. 354, 355, 331 N.E.2d 916 (1975), overturning Leccese v. McDonough, 361 Mass. 64, 279 N.E.2d 339 (1972), authorized a wrongful death action to be maintained for a fetal death. That holding necessitated some adaptation to the wrongful death statute, because a wrongful death action may not be maintained by the persons entitled to the recovery, but only by the executor or administrator of the decedent. G.L. c. 229, § 2. Gaudette v. Webb, 362 Mass. 60, 64, 71, 284 N.E.2d 222 (1972). A fetus would not normally have an administrator, having no estate; a recovery for wrongful death, as distinguished from a recovery for conscious pain and suffering of the deceased, is not part of the estate of the decedent. Sullivan v. Sullivan, 323 Mass. 671, 672, 84 N.E.2d 32 (1949) (a wrongful death recovery is not part of the general assets of the estate, is not to be applied to the payment of debts, and is not to be distributed under the will). Maltzman v. Hertz, 336 Mass. 704, 707-708, 147 N.E.2d 767 (1958). Rather, the wrongful death recovery is a separate fund, held in trust by the administrator or executor, for the benefit of those entitled to the recovery under the wrongful death statute. Arnold v. Jacobs, 316 Mass. 81, 85, 54 N.E.2d 922 (1944); Maltzman v. Hertz, supra. Mone v. Greyhound Lines, Inc., supra, is accommodated in practice by appointing an administrator for the stillborn fetus, for the purpose of prosecuting the action and distributing the net proceeds. Indeed, the Mone action itself was prosecuted by such an administrator.

The wrongful death statute defines the class of presumptive takers, G.L. c. 229, § 1, and measures the recovery by "the fair monetary value of the decedent to the persons entitled to receive the damages recovered." G.L. c. 229, § 2. Guy v. Johnson, 15 Mass.App.Ct. 757, 762, 448 N.E.2d 1142 (1983). The primary takers under the act are the decedent's spouse and issue; but a fetus, of course, can have no spouse or issue, with the result that those entitled to the recovery here, under § 1(4), are the fetus's "next of kin." There is some authority for the proposition that "next of kin," in the absence of anything to import that the phrase is used in a different sense, connotes the decedent's nearest blood relatives, that is, those closest in degree of consanguinity, as contrasted with the word "heirs," which suggests reference to the statutory scheme of intestate distribution. Swazey v. Jaques, 144 Mass. 135, 137-138, 10 N.E. 758 (1887). Agricultural Natl. Bank v. Schwartz, 325 Mass. 443, 446, 91 N.E.2d 195 (1950). By that definition the mother and the father would each be entitled to recovery--presumptively, at least, because the amount recovered would not necessarily be divided equally but rather, under Guy v. Johnson, supra, in proportion to the value of the decedent to each respectively.

It is emphasized in Swazey v. Jaques, supra at 138, 10 N.E. 758, that "[t]he context and the subject matter must in each case determine the meaning of the words [next of kin]." Thus, a Federal court, applying the Massachusetts wrongful death statute, has read Guy v. Johnson as holding that the words "next of kin" incorporate the statutory intestacy scheme of distribution. Poyser v. United States, 602 F.Supp. 436, 440 (D.Mass.1984). This holding seems reasonable to us, in context, because the wrongful death statute is, in effect, setting out a parallel scheme of intestate distribution, made to insure that the proceeds of the recovery be distributed in a manner commensurate with the actual loss to those presumptively closest to the decedent, but without the detail that appears in the more comprehensively thought out intestacy statute. Mechanical reliance on consanguinity, in particular, would sidestep the policy of the Commonwealth dealing with intestate distribution in the context of illegitimacy, which is set out in G.L. c. 190, §§ 5-7, as adopted in 1980 (St.1980, c. 396 ²).

Under that scheme, the policy of the Commonwealth is that the father of an illegitimate child is not necessarily entitled to be treated as the child's heir. In contrast to both parents of a child born within the marriage relationship, G.L. c. 190, § 3(2), and in contrast to the mother of a child born out of wedlock, G.L. c. 190, § 5, who are all unconditionally deemed heirs to the child, and thus, inferentially, the child's next of kin, the unwed father's entitlement to that status is conditional. He is only deemed heir to the child if the child could have inherited from him. G.L. c. 190, § 6.

Because the stillborn child here did not live to birth, she never achieved legal personhood. Not having lived, she cannot be the heir of anybody and cannot have an estate. A fetus that is never born live cannot be an heir and cannot have an estate. The Mone decision held only that a fetus is a person for purposes of maintaining an action under the wrongful death statute. Mone v. Greyhound Lines, Inc., 368 Mass. at 355, 331 N.E.2d 916. Absurd consequences would follow if a fetus were treated as a son or daughter, or as a brother or sister, under the intestacy law. A fetus may be an heir conditionally (see G.L. c. 190, § 8, relating to children born posthumously), but the condition is one of live birth. Because a stillborn fetus cannot inherit from its father, the father of such a fetus cannot meet the condition of § 6. Contrast Sullivan v. Farrell, 383...