Matter of Di Bella

• Citation: 199 Misc. 847
• Parties: In the Matter of The Estate of Angela Di Bella, Deceased.
• Decision Date: 16 November 1950
• Court: New York Surrogate Court

199 Misc. 847

In the Matter of The Estate of Angela Di Bella, Deceased.

November 16, 1950.

Peter N. Buono, A. E. Gold and James B. Gitlitz for Florence Tanzini, as administratrix of the estate of Angelo Di Bella, deceased, petitioner.

Roy C. McHenry and Lester R. Mosher for Carmelo A. Rigono, as administrator of the estate of Angela Di Bella, deceased, respondent.

David H. Perlman for Consul General of Italy at New York, on behalf of Carmela Di Bella and others, respondents.

PAGE, S.

Angelo Di Bella and Angela Di Bella, his wife, together with their fifteen-year-old daughter, Gina Di Bella, met death by asphyxiation in their Vestal Avenue, Binghamton, N. Y. home some time between September 23d and September 26, 1949. Their living quarters were the first-floor apartment of their house. Fred Arrigoni, Binghamton policeman, with his wife and infant daughter, lived in a practically identical apartment on the second floor. As of September 26, 1949, the last they had seen of any of the Di Bella family was on Friday, September 23d. Motivated by this phenomenon, Officer Arrigoni called in two fellow members of the city police department and, with them, broke into the Di Bella apartment. Thereupon, they found the father, mother and daughter lying dead on a bed in a bedroom adjacent to the kitchen. The atmosphere of the apartment was heavily charged with gas. The source of this was readily apparent as having come from the kitchen range, upon which was a kettle containing, or which had contained, glass jars of tomato paste. Some of these jars had burst and their contents had spattered around on various parts of the walls and floor.

Alleging that Angelo's wife, Angela, left no husband her surviving, one of her brothers, Carmelo A. Rigono, applied for and was granted letters of administration upon her estate on the 7th day of October, 1949. Angelo Di Bella left him surviving two children by a previous marriage, Florence Tanzini and Joseph Di Bella. On October 8, 1949, petitioner herein, said Florence Tanzini, was duly appointed administratrix of her father's estate. The theory of the petitioner herein is that, her stepmother, Angela Di Bella's net personal estate being less than $10,000, her father, having survived his wife by a very short time, and thereupon and therefore having become her sole distributee (Decedent Estate Law, § 83, subd. 4), her father having since died and she having been appointed administratrix of his estate, that she is, by reason of the provision of section 118 of the Surrogate's Court Act in relation to the grant of letters of administration in a case where a person since deceased, was "entitled to take all the personal estate", solely entitled to the grant of letters of administration upon the estate of Angela Di Bella, deceased, and that said two children of Angelo Di Bella, deceased, comprise all the distributees of his estate and the devolution thereof must be governed accordingly. The question as to the possible survivorship by Gina Di Bella of either her father or mother or both is not presented by the pleadings, presumably because, in any event, this question would be academic, since the devolution would not be affected.

The predominant issue is as to whether or not Angelo survived Angela. The right to appointment as administrator of Angela's estate, as well as the devolution thereof, is dependent entirely upon the resolution of this issue.

The petitioner, alleging that one of two who met death in a common disaster was the survivor, unaffected by any presumption one way or another, has the burden of establishing such survivorship by a fair preponderance of all the evidence in the case. A concise statement of the law governing such situations as it exists in this State and generally throughout English-speaking jurisdictions is: "The burden of proof of survivorship rests on the appellants. The law is settled in this State that there is no presumption of survivorship in the case of persons who die by a common disaster. In the absence of satisfactory evidence of survival, the fact is assumed to be unascertainable, and the property rights are disposed of as if death occurred at the same time, not because of the presumption of simultaneous death, but because of the absence of evidence or a presumption to the contrary". (See Matter of McInnes, 119 App. Div. 440, 441, citing Newell v. Nichols, 75 N.Y. 78, and St. John v. Andrews Inst., 117 App. Div. 698.)

The above indicated common-law rule has been codified. A statute known as the "Uniform Simultaneous Death Act" has now been enacted in thirty-six States besides New York. In New York, this statute is section 89 of the Decedent Estate Law, the only presently applicable provision of which is its subdivision 1, which reads as follows: "1. Where the title to property or the devolution thereof depends upon the priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived, except as otherwise provided in this section."

The above-cited and other cases whereby the law of this State has become well settled have expressly held that no physical condition such as sex, relative ages or physiques, or the circumstance that one of the two persons whose survivorship of the other is in question was suffering from some malady or any other physical condition which, logically, might seem to be a basis of probability in relation to survivorship, can be considered as constituting the basis of a presumption that the physically superior person survived the other.

Very extensive testimony was taken in the present case. The petitioner contends that, as the composite indication of all the evidence, her burden of proof as to survivorship is sustained by the bearing and effect of each of three main categories of evidence, viz:

(1) The deceased, Angela Di Bella's having been for some years afflicted with the respiratory disease or condition known as asthma, in quite an aggravated form.

(2) Physical differences in the bodies as they were found indicative of the woman's having predeceased the man.

(3) Testimony of a witness, Clare Arrigoni, tending to show that the woman had ceased breathing before the man.

In adjudicating the question as to whether or not the petitioner has adequately supported her burden of proof, we have to examine and appraise each of the three above-stated categories of evidence in order to determine whether, either singly or in combined effect, they or any of them are of a weight sufficient to support the contention of the petitioner.

It is undisputed that the deceased, Angela Di Bella, had been, for several years, a sufferer from asthma, and had been undergoing a particularly severe attack of this malady for a period of two or three weeks immediately preceding the date of the tragedy in question. As to the bearing of this fact upon the issue of survivorship, in all, six doctors testified. Four of the doctors testified in support of the thesis that a chronic asthmatic, hard pressed to supply her physical need of oxygen, when subjected to the additional condition of exposure to carbon monoxide mingled with the air, could not hold out so long as a person having a normal respiratory system.

This first category of evidence is, of course, designed to support the inference that the effect of the asthmatic affliction of Mrs. Di Bella would be that she could not possibly have withstood asphyxiation by carbon monoxide for as long a period of time as would be true in the case of her husband who was free of any such physical ailment and whose respiratory system, presumably, was normal. The weight of the doctors' testimony was to the effect that, because of these facts, with reasonable medical certainty, the wife's death occurred sooner than that of her husband.

There being no presumption of the survivorship of the weaker or diseased by the stronger or more physically fit person, no legal consideration based on public policy is involved. But it is contended by the petitioner that the issue of survivorship, being free of any and all presumptive considerations and, therefore, an open question, if a difference in potential resistance to the common cause of death seems apparent, and, particularly, if this can be strongly reinforced by medical testimony, then there may well be a basis of inference presented. In this connection, the petitioner relies on such authority as an expression of the Court of Appeals contained in Newell v. Nichols (75 N.Y. 78, 89, supra) viz.: "If there are other circumstances shown, tending to prove survivorship, courts will then look at the whole case for the purpose of determining the question, but if only the fact of death by a common disaster appears they will not undertake to solve it on account of the nature of the question, and its inherent uncertainty."

The petitioner also cited Wigmore on Evidence (Vol. 9, § 2532) which states the rule as follows: "Where two or more persons have perished in the same disaster, there is at common law no presumption of law that either survived the other, or that all perished at the same time. The burden of proving that one survived another will commonly be on any claimant for whom that fact is essential to his own chain of title. If there is evidence, from the age, sex, or physical condition of the persons who perished, or from the nature of the accident and the manner of death of the parties, which tends to show that some one did in fact survive the others, the whole question is one of fact, to be decided in each case by the jury, according to the incidence of the first burden of proof (ante, § 2485); but without any rule of presumption." In response to this line of reasoning the countercontention of respondents is that, it being not permissible to indulge any presumption, the court must entirely disregard any and all evidence of the physical superiority of one as compared with...