In re the Estate of Scanelli

Bennett, S. The petitioner is the father of a stillborn child who seeks to present a petition for letters of administration upon the ground that a right of action exists. This court has refused to entertain the petition upon the ground that there is no authority to issue such letters on a stillborn infant. The problem presented is twofold and carefully considered in Matter of Roberts (158 Misc. 698). Letters of administration were denied in that case upon two grounds, the first of which was that the deceased never had a separate legal entity. The second ground in the Roberts case was that no right of action existed in an unborn child for negligent injuries upon the doctrine of Drobner v. Peters (232 N. Y. 220). Since that time this doctrine in regard to injuries to an unborn child has been changed by Woods v. Lancet (303 N. Y. 349) and Kelly v. Gregory (282 App. Div. 543). However both the Woods and Kelly decisions involve cases where the infant was born alive. The first ground of objection mentioned in Matter of Roberts (supra) is still applicable, to wit, that no legal personality ever existed in the case of a stillborn child. ‘ ‘ The ‘ fiction of law ’ which considers an unborn child as a person in being is indulged in only for the sake of the child ” (Matter of Roberts, 158 Misc. 698, 699, supra) and has not been extended to a person claiming through such child. Where the child is never born alive, no letters can issue because the person alleged to be a deceased person never had a legal existence. The court must decline to accept and entertain the petition offered. If counsel so desires, an order may be submitted to this effect.