In re the Estate of Jenks

Decree denying peti- tioner’s application for limited letters of administration and granting the application of the cross petitioner therefor, reversed, on the law, on the facts and in the exercise of discretion, without costs, and the application of the petitioner granted. The parties, husband and wife, are the parents of the deceased who died intestate December 16, 1960 at the age of 17 as a result of a mid-air collision between two commercial airliners. On May 9, 1960 petitioner was awarded a judicial separation on the grounds of failure to support and abandonment, and custody of the two children of the parties, one of whom was the deceased. It may be assumed that the pecuniary loss of the petitioner consequent on the wrongful death of the decedent is greater than that of the father. (Gross v. Abraham, 306 N. Y. 525; Matter of Pridell, 206 Misc. 316; Decedent Estate Law, § 133.) We feel that the discretionary power should have been exercised in favor of the petitioner who may be entitled to the largest share of the recovery. (See Surrogate’s Ct. Act, § 118, subd. 6.) The cross petitioner argues, and we agree, in the circumstances, needless controversy between the parties will be engendered by joint administration. Concur — Rabin, J. P., McNally, Stevens, Eager and Steuer, JJ.