
    In the Matter of the Estate of Barbara A. Bucci, Deceased.
    Surrogate’s Court, Broome County,
    October 8, 1968.
    
      Frederick V. Marsi, in person, and Lloyd G. Anderson for Frederick V. Marsi, as executor of Barbara A. Bucci, deceased, petitioner. Frederick V. Marsi, as executor of J. Richard Bucci, deceased, and also as one of the guardians of Noel S. Bucci and another, infants, respondent in person. Stuart M. Waite, guardian ad litem for Noel S. Bucci and another, infants, respondent.
   John M. Keane, J.

J. Richard Bucci and his wife, Barbara Ann, perished on May 1, 1967 at La Guardia Airport in his Piper Cherokee airplane when it was in collision with a de Havilland Dove airplane of Yankee Airlines. Fire broke out immediately following the crash and the Piper Cherokee was destroyed by the impact and fire. Both J. Richard and Barbara Ann Bucci were dead when removed from the airplane. In this proceeding the executor of the last will and testament of Barbara Ann Bucci seeks a determination that she survived her husband, J. Richard Bucci.

Two infant children, Noel S. Bucci and Megan G. Bucci, survived J. Richard and Barbara Ann Bucci. The wills of both parents have been admitted to probate in this court. The testamentary disposition of each will is identical. Each leaves everything to the other spouse conditioned on survival. Failing that, the property is to be held in trusts for the two children until each attains 30 years of age.

There were introduced into evidence the Civil Aeronautics Board pilot operator aircraft accident report, general aviation aircraft; the National Transportation Safety Board factual aircraft accident report — general aviation; photographs showing the two planes following the collision; and detailed autopsy reports for both J. Richard Bucci and Barbara Ann Bucci from the office of the Chief Medical Examiner of the City of New York. Finally, testimony was given by two qualified physicians interpreting each autopsy report.

The postmortem report on J. Richard Bucci showed three transections of the aorta, one of which was right above the heart, and, additionally, a skull fracture which split the skull in two and crossed through the base of the brain. No carbon monoxide was found in an examination of his blood. It was the opinion of the physicians that J. Richard Bucci died instantaneously.

The injuries to Barbara Ann Bucci, while fatal, were not as severe. The most significant factor appearing in the postmortem report of Barbara Ann Bucci concerned the presence of carbon monoxide in her blood.

The Piper aircraft piloted by J. Richard Bucci carried, according to documentary evidence, 100-octane gasoline. The fire which broke out immediately following the crash was fueled by this gasoline. The testimony indicated that such a fire will produce carbon monoxide. The presence of carbon monoxide, even in a small amount, in the blood of Barbara Ann Bucci and the lack of such carbon monoxide in the blood of J. Richard Bucci indicated to the physicians that Barbara Ann Bucci had inhaled some of the carbon monoxide during the fire. Based upon that factual finding, it was the testimony of the physicians that Barbara Ann Bucci did survive her husband, J. Richard Bucci, for a very brief interval.

Where persons die in a common disaster so that death would appear to be simultaneous, disposition of the property will be made according to EPTL 2-1.6. There is no presumption in such a situation that, by reason of sex or physical condition, one person survived another. The person asserting survivorship must prove the same with evidence satisfactory to the court.

Many years ago, in St. John v. Andrews Inst. (117 App. Div. 698 [1907]), the court had before it the question concerning the survivorship of a beneficiary under the will who had perished in a fire at the testator’s home along with the testator. At page 704, the court stated: “ It was not necessary to show that she survived the testator any given length of time. It is sufficient if the evidence fairly warrants the inference that she survived the testator, even though the period of survivorship may have been less than a second.” (Emphasis in decision.)

While St. John v. Andrews Inst. was modified in the Court of Appeals in 191 N. Y. 254 (1908), the decision did not affect the statement quoted above. This position is supported more recently in Matter of Di Bella (199 Misc. 847 [1950], affd. 279 App. Div. 689 [1951]) decided by a predecessor in this court, the late Mr. Surrogate Page.

Based upon the fact that the brain of Barbara Ann Bucci remained intact and on the further fact that- her blood contained carbon monoxide which could only have entered by inhaling such gas generated by the gasoline fire, as opposed to the massive injuries to J. Richard Bucci, including severe skull and brain damage, and particularly the lack of any carbon monoxide in his blood, this court determines that Barbara Ann Bucci did survive J. Richard Bucci.  