Opinion
January 13, 1981
Banno, Landi Pajion for petitioner.
Edmond C. Burke and Edgar Guidone for respondent.
These are two petitions: one by the father of the decedent and the other by the mother as guardian of the two children of the decedent born out of wedlock to revoke the letters issued to the decedent's wife on the ground of her alleged abandonment of the decedent. The wife now moves to dismiss the petition of the guardian of the children on the ground that they are not persons interested who may petition to request letters since they are not entitled to share in the estate and therefore lack status. While it is true that the nonmarital infants are not distributees so as to share in the probate estate, they are nevertheless interested in any recovery in the wrongful death action (compare EPTL 5-4.5 with EPTL 4-1.2 and Lalli v Lalli, 439 U.S. 259; see, also, Matter of Brown, 101 Misc.2d 805). Under these circumstances it cannot be said that the nonmarital infants are uninterested in the question as to whether letters issued to the widow should be revoked because of abandonment. The case of Matter of Wood ( 203 Misc. 809, app dsmd 282 App. Div. 1093) is distinguishable since it was clear there that the nonmarital children had no interest whatsoever in the decedent's estate or any cause of action. The motion is accordingly denied. This matter will appear on the calendar on Wednesday, January 21, 1981 at 9:30 A.M. to fix a date for a hearing.