248 A.D. 738 | N.Y. App. Div. | 1936
Proceeding in the Surrogate’s Court of Richmond county to procure a decree that Grace Irene Downs, prior to the death of her son, Henry Clifford Downs, who died intestate, abandoned him within the meaning of Decedent Estate Law, section 133, subdivision 3, and, therefore, is not entitled to share with his father in damages recovered for the intestate’s accidental death. Decree of the Surrogate’s Court of Richmond county adjudging that Grace Irene Downs abandoned the intestate and dismissing her claim reversed on the law and the facts, with costs, payable out of the estate, to appellant, and the claim allowed. The matter is remitted to the Surrogate’s Court of Richmond county for the entry of a decree in accordance herewith. We are of opinion that the finding of abandonment is against the greater weight of the credible evidence, from which the lawful inference is that there was no such abandonment. (Matter of Hayford, 109 Misc. 479; Matter of Davie, 142 id. 681, 690, 691, and cases therein cited.) The finding of abandonment is reversed and this court finds that the mother (the appellant) did not abandon her son, Henry, prior to his death. Lazansky, P. J., Carswell, Davis, Adel and Taylor, JJ., concur. [157 Misc. 293.]