In re the Accounting of Guilianelli
Aсting Surrogate. TMs is a proceeding by Ernest Guilianelli, a father, to compel Mary Kiley Guilianelli, a mother, the administratrix, to acсount for the amount of damages recovered for a wrongful death of a minor cMld, and for a decree directing the distributiоn to him of Ms share of the proceeds of said action pursuant to section 133 of the Decedent Estate Law.
Section 133 of the Decedent Estate Law provides:
‘ ‘ The damages recovered in an action, as prescribed in tMs article, or obtained through settlement without action, are exсlusively for the benefit of the decedent’s husband or wife, and next of Mn, except as hereinafter otherwise provided; and, when they are collected, they must be distributed by the plaintiff, or representative, to any or all of such husband or wife and next of kin, in proportion to the pecuniary injuries suffered, the proportions to be determined upon notice to all interested persons in such manner as the court shall deem proper and after a hearing at such time as the court may direct, upon application made by the plaintiff or representative or by the husband or wife or any next of kin. If no action is brought, such determina
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“2. In case the decedent leaves neither husband, wife, nor issue, but leaves a mother, and a father who has abandoned him, or who has left the maintenance and support of their child to the mother, the damages or recovery shall bе for the sole benefit of such mother.
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“ 4. No share of such damages shall be allowed under the provisions of this article either (a) To a husband who has neglected or refused to provide for his wife, or has abandoned her; (b) * * *; (c) Or in the estate of a сhild to a parent who has neglected or refused to provide for such child during infancy or who has abandoned such child during infancy whether or not such child dies during infancy, unless the parental relationship and duties are subsequently resumed and continue until the deаth of the child.
‘ ‘ In the event that a husband or wife or parent is deprived of a share of such damages under the provisions of this sеction, such damages shall be distributed in accordance with the other provisions of this section as though such husband, wife or pаrent had predeceased the decedent.”
The respondent contends that the petitioner has failed to establish a voluntary abandonment by a preponderance of the credible evidence and that the respondent has voluntarily contributed to the maintenance and material well-being of the deceased child.
In support of his contentions, the respondent cites: Matter of Musczak (
There can be no disagreémеnt with the findings of the courts in the cases cited above.
However, the sole pertinent inquiry is whether the father did or did not, in fact, by his own vоluntary act, discontinue the performance of his legal duty of personal care and training of the child. (Matter of Schriffrin,
It is to be noted that the inquiry is directed to two questions:
1. Was there an abandonment of the child by the father, and
2. Was there a failurе on the part of the father to support the child and properly provide his care and maintenance ? (Matter of Musczak,
The abаndonment contemplated by the statute is the neglect or failure to fulfill this later responsibility of parental care and guidаnce. (Matter of Musczak, supra; Matter of Schriffrin, supra.)
The evidence in the case at bar must be the guiding factor in arriving at a determination.
The facts briefly are that there were two prior children, the issue of this marriage. A separation took place. Insofar as to the fixing of the blame for such separation, it makes no difference as to the father’s responsibility for this subsequent child. The father had been contributing thе sum of approximately $10 per week for the care of the first two children. He continued to make this same payment, fаirly regular after the birth of the child, now deceased, until upward of some 150 payments had been proven. There was no increase in the amount after the birth of Patrick.
There was some evidence offered by the respondent that on one oсcasion he had attempted to see the child, but the proof seems to be overwhelming that respondent never visited or saw the child, never corresponded with him, refused to pay the hospital bills for the birth of the deceased, very seldom, if ever, inquired as to the health or well-being of the child, and never contributed to his care, support or maintenance. This court cannot accept the $10 contributions as continued, as support for the deceased. The father was well able tо increase the amount of such support after the birth of the deceased. Ten dollars would probably be inadequatе for the care, support maintenance and education of the two children, and entirely inadequate for three сhildren. The proof points up to the fact that there was a complete denial of Patrick by his father.
The father remained at all times responsible for the care and well-being of his children. He did very little for the first two children and contributed nothing for thе care and well-being of Patrick, the deceased. Patrick remained under the care of his
In view of these facts and the other evidence introduced on the trial, and the cases cited, this court can only reach the conclusion that the respondent abandoned the deceased and did not provide for the care, maintenance and support of the deceased child, and is therеfore, pursuant to section 133 of the Decedent Estate Law, barred from sharing in the proceeds recovered for the wrongful death of the deceased.
Submit decree.