
    In the Matter of the Estate of Edward A. Smith, Deceased. Edward R. Smith, Appellant; Elizabeth L. Smith, as Administratrix, etc., of Edward A, Smith, Deceased, Respondent.
    Second Department,
    December 30, 1909.
    Executors and administrators — accounting — refusal to account to ancestor of decédent on the ground that posthumous child was born— burden of proof.
    Where a widow, as administratrix of her deceased husband who died without issue, resists a compulsory accounting instituted by the father of the decedent upon the ground that after her husband’s death she. gave birth to a posthumous child,'she is under the burden of showing that the child was bom alive.
    Evidence examined, and held, insufficient to show that the posthumous child was bom alive.
    Appeal by Edward R. Smith from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 25th day of March, 1909.
    
      William F. Gormell, for the appellant.
    
      Nicholas Dietz, for the respondent*
   Rich, J.:

This appeal is from a decree of the Surrogate’s Court of Kings county dismissing the petition for a compulsory accounting by the respondent as the administratrix of the estate of her first husband, who died leaving as his only relatives the respondent, his widow, his father, his mother, two sisters and a brother. Eight months after the death of respondent’s husband she gave birth to a posthumous child, and the learned surrogate has dismissed the father’s petition for an accounting upon the ground that he was not a next of kin of the decedent and not an interested" party to the proceeding. This finding was based upon the conclusion that the child was born alive, and upon this appeal we are only concerned with the consideration of the question as to the .correctness of this conclusion. The burden of proving that the respondent gave birth to a child having life was upon her (Bender v. Terwilliger, 48 App. Div. 371),. and I am unable to find that the evidence preponderates in favor of her contention; upon the contrary, I believe the circumstances point unmistakably to the fact that the child was not born alive. Upon the hearing before the surrogate the only persons called who could haye any knowledge upon the subject beside the respondent, were the nurse and the attending physician. The doctor testified that the delivery was abnormal, attended with difficulty, and that the patient required his constant attention. He said that about two hours before the child was born he applied a stethoscope to the abdominal walls of the mother and detected the beating of the foetal heart, but it is not claimed that he saw or observed any other indication of life. In speaking of the occurrence after the delivery, he said: “I quickly detached the cord from the afterbirth and passed the child who Was limp and pale and had not emitted any cry or motion, to the nurse. I might say that I had not seen any motion, but I handed the child to the nurse with instructions to do what she could for the child because I felt that there might be life even though it was an abnormal delivery.” The nurse testified that, as the doctor let go of the child’s legs in handing it to her, she noticed that its two feet gave a kick or twitch, and this is the only fact upon which the finding of the learned surrogate could have been predicated. We are concerned upon this appeal as to whether this evidence was sufficient to support the finding, and in considering this we must take into consideration all of the facts and circumstances.

in the first place, after taking' the child from the doctor, the nurse passed it on into the hands of' a' relative without giving any attention, and went to a neighboring drug store to obtain medicine for the doctor, notwithstanding there were other persons in the house at the time who might have gone upon this errand, and I cannot reconcile her conduct with the conclusion that the child was alive or that she even entertained the belief that it was. She exhibited the dead body to the mother during the day, but neglected to mention what she had observed. This, omission may have been excusable, but she was likewise reticent in failing to mention it to the doctor. She abandoned the child without care, and did not mention that she had observed any evidence of life to any one until the respondent called upon her and informed her that “ upon the question of life or death of .the child and the delivery hung her right to the estate,” when for the first time she told that she had observed the movement of the child’s legs. The relative into whose hands the child was delivered by the nurse was not called as a witness, and her absence- is unexplained. There is no evidence of any crying, change of color, independent breathing, or that the child made any manifestation of life, except this kick, which may have been due to a- relaxation of a contracted muscle, or it may have been imaginaiy. A careful examination of the record leads to the conclusion that the respondent has failed to establish by a preponderance of evidence that a live child was born to her, and' the decree of the Surrogate’s Court must, therefore, be reversed,, with costs to the appellant payable out of the estate, and the proceedings remitted to the Surrogate’s Court for final disposition and an accounting.

Hirschberg, P. J., Woodward, Jehks, and Miller, JJ., concurred.

Decree of the Surrogate’s Court of Kings county reversed, witli costs to the appellant payable out of the estate, and proceedings remitted to said court for final disposition and accounting.  