Logan's Estate, In re

• Decision Date: 19 July 1956
• Citation: 4 Misc.2d 283,156 N.Y.S.2d 49
• Parties: In re ESTATE of John LOGAN. Surrogate's Court, New York County
• Court: New York Surrogate Court

Page 49

156 N.Y.S.2d 49

4 Misc.2d 283

In re ESTATE of John LOGAN.

Surrogate's Court, New York County.

July 19, 1956.

Snitow & Snitow, New York City, for Otis Logan.

FRANKENTHALER, Surrogate.

Petitioner seeks limited letters of administration on the estate of his stillborn son, alleging the existence in an administrator of a right of action for the death of this child. On August 25, 1954, the infant's mother, then at the close of her third month of pregnancy, was injured in an automobile collision, which, it is claimed, caused the baby to be born dead on October 17, 1954, approximately two months later.

Letters of Administration may not issue unless there is a deceased person whose property requires administration, Roughan v. Chenango Valley Savings Bank, 158 App.Div. 786, 144 N.Y.S. 508, affirmed 216 N.Y. 696, 110 N.E. 1049. Although a wrongful death action constitutes such property, see Surrogate's Court Act, § 89(a) and (f), the Court of Appeals has held that there is no wrongful death action for fatal injury to a foetal child, due to the remote and speculative character of the damage, Butler v. Manhattan Ry. Co., 143 N.Y. 417, 38 N.E. 454, followed in Witrak v. Nassau Electric R. Co., 52 App.Div. 234, 65 N.Y.S. 257; see Devine v. Brooklyn Heights R. Co., 131 App.Div. 142, 115 N.Y.S. 263. In Matter of Roberts' Estate, 158 Misc. 698, 286 N.Y.S. 476, where the facts closely resemble those in the case at hand, letters were denied on the ground that the stillborn child alleged to be deceased never had a legal existence. The reason for Surrogate Delehanty's alternative holding there that no wrongful death action ever came into existence, is no longer applicable. Then the rule of Drobner v. Peters, 232 N.Y. 220, 133 N.E. 567, 20 A.L.R. 1503, precluded suit for prenatal injuries by a child later born and as a result the requirement of Decedent Estate Law, § 130, that a wrongful death action be based upon injuries which if non-fatal would give the decedent himself a right of action, could not be met in the case of a stillborn. Woods v. Lancet, 303 N.Y. 349, 102 N.E.2d 691, has overruled Drobner v. Peters, supra, and permits suit by a child born alive for injuries suffered in the womb through another's negligence during the ninth month of pregnancy, thus enabling petitioner in the instant case to make the necessary allegation that the infant could have sued if he had survived. See Kelly v. Gregory, 282 App.Div. 542, 125 N.Y.S. 696, leave to appeal granted, 283 App.Div. 914, 129 N.Y.S.2d 914, April 1954, applying the rule of Woods v. Lancet, supra, to a negligently caused injury during the third month.

Petitioner relies mainly on the decision in Woods v. Lancet, supra, to support his claim for letters. The opinion in that case does treat a viable foetus as a separate person in esse to whom a tortfeasor owes a duty of care (See Prosser on Torts, 941 Ed. p. 188 et seq.) and it is contended that an action consequently lies for the death of said person. This 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., supra [143 N.Y. 417, 38 N.E. 455], 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 generally whether there was the apparent promise of a continued or useful life, or the contrary.' [In the case of a stillborn...