In re the Estate of Downs

Smith, S.

The mother of the decedent petitioned this court to compel the father, as administrator, to account and pay over her distributive share of the proceeds of the recovery in a negligence action for the death of their child. The administrator denied the *294right of the mother to any part of such recovery, claiming that she had abandoned her child.

Section 133 of the Decedent Estate Law provides that the damages recovered in an action for negligence are, in the absence of a husband, wife or children, exclusively for the benefit of the father and mother of a child, but that in the event of…