injury to the person of the plaintiff abates on his death,10 the pendency thereof cannot be pleaded in bar of an action brought by his personal representative for his death, resulting from such injury and caused by the wrongful act or omission of the defendant.1

§ 7035. Pendency of an Action under an Entirely Different Right. -In Georgia, a right of action is conferred upon a mother for the killing of her minor son upon whom she is dependent for support, and this action is not barred by a pending suit of the father in which he claims damages for the loss of his son's services up to the time he would have reached his majority.12

§ 7038. Distribution of Damages. The damages recovered in actions for death by wrongful act are not for the benefit of creditors of the deceased. Most of the statutes provide how they shall be distributed, and some of them by express words exclude creditors. The personal representative brings the action, not in the right of the estate, but as a trustee for the distributees. Such statutes are en

acted, as respects the measure of damages, upon the idea that, as a general fact, the personal assets of the deceased would take the direction given them by the law governing the case of intestates. Hence any damages given must, as a general thing, be so distributed, even though the party has left a will not so devolving his property.2 In Kentucky, only the funeral expenses and the cost of recovering and administering the particular fund are to be paid out of the fund before distribution to the kindred of deceased, all other costs of administration being payable out of the general estate. In Pennsylvania, all the children of the deceased are entitled to share in the damages recovered by the widow, in the proportion in which they would respectively take the personal property of the father under the intestate law of that State. In Virginia, the manner in which the damages are to be distributed is exclusively for the jury, and their decision cannot be complained of by the defendant. The failure of the administrator in his complaint to name all the legal beneficiaries provided for in the statute, will not bar any legal distributee not named from receiving his share of the judgment recovered. In case of conflict, the distribution of damages recovered is governed by

shall have the meaning given in sec-
tion 1870, which provides that it shall
include those entitled to share in
the unbequeathed assets of deceased,
other than a husband or wife. It
was held that where deceased left
no children, his father, under Code
Civ. Proc. § 2732, subd. 7, was en-
titled to half the damages recov-
ered by the wife, as administratrix,
for the negligent killing of the hus-
band: Snedeker v. Snedeker, 164 N.
Y. 58; s. c. 58 N. E. Rep. 4; aff'g s.
c. 63 N. Y. Supp. 580. Under Mc-
Clain's Iowa Code, § 3731, providing
that damages for wrongful death
shall be disposed of as personalty of
decedent, and shall not be liable for
his debts, where he leaves a child,
wife or parent, money recovered
for the wrongful death of a person
leaving a father and mother and no
wife or child immediately descends
to the father and mother in equal
shares, and their interest therein
may, after payment of the judgment
into court, be applied in payment of
a judgment against them, under
Code 1873, 88 3150-3154, authorizing
the court, in proceedings to enforce
a judgment, to direct moneys or
property in the hands of a third per-
son to be applied in payment of the
judgment: Casady v. Grimmelman,

108 Iowa 695; s. c. 77 N. W. Rep. 1067. Under the Alabama act of 1872, p. 83, providing that "when the death of a person is caused by the wrongful act or omission of another, the personal representative of the other may maintain an action," the compensation recovered therein becomes assets of the estate, not, however, subject to the payment of debts, and must be distributed as other personalty: South &c. R. Co. v. Sullivan, 59 Ala. 272.

2 Railroad Co. v. Barron, 5 Wall. (U. S.) 90.

3 O'Malley v. McLean, 113 Ky. 1; s. c. 67 S. W. Rep. 11; 23 Ky. L. Rep. 2258.

+ Lewis v. Hunlock's Creek &c. Co., 203 Pa. St. 511; s. c. 53 Atl. Rep. 349 (children of full age living apart from the family not entitled to share); Allison v. Powers, 179 Pa. St. 531; s. c. 39 W. N. C. (Pa.) 522; 27 Pittsb. L. J. (N. S.) 408; 36 Atl. Rep. 333.

5 Norfolk &c. R. Co. v. Stevens, 97 Va. 631; s. c. 34 S. E. Rep. 525; 46 L. R. A. 367.

Duzan v. Myers, 30 Ind. App. 227; s. c. 65 N. E. Rep. 1046; Oyster v. Burlington Relief Dept., 65 Neb. 789; s. c. 91 N. W. Rep. 699; 59 L. R. A. 291.

the statute in force at the time of the death of the deceased, and not the statute in force at the time of the injury.7

§ 7039. Assignment of Interest.-The interest of a beneficiary in the damages which may be recovered in an action of this kind is one capable of assignment. The recovery is received by the beneficiary in the course of administration, and stands on the same footing as a distributive share in any other fund of the decedent's estate. A contrary legislative intent is not shown by the fact that the statute says the amount shall be for the exclusive use of the beneficiaries, as the purpose of this language is to safeguard the fund from the creditors of the deceased.

'Richmond v. Chicago &c. R. Co., 87 Mich. 374; s. c. 10 Rail. & Corp.

L. J. 344; 49 N. W. Rep. 621; 49 Am. & Eng. R. Cas. 367.

8

" Quin v. Moore, 15 N. Y. 432.

CHAPTER CLXXXIV.

PARTIES TO ACTIONS AND BENEFICIARIES.

SECTION

7042. Statutes designating parties and beneficiaries closely followed.

SECTION

7052. Widow entitled to entire recovery under certain circumstances.

7043. Personal representative-Defi- 7053. Common-law wife.

nition.

7044. Special and ancillary administrators.

7045. Beneficiaries and not personal representatives must sue in some jurisdictions.

7046. Beneficiary allowed to sue

7054. Effect of divorce and separa

tion.

7055. Parents and collateral relatives not included in term "heirs."

7056. Whether father or mother

meant by term "parent."

where no personal repre- 7057. Who included in the term

7050. Pecuniary benefit from life of 7060. Parties in actions for feloni

$7042. Statutes Designating Parties and Beneficiaries Closely Followed. Since the remedy for death by wrongful act is unknown to the common law and is wholly statutory, it follows that an action therefore can be maintained only by the person who is by the direct terms of the statute authorized to maintain it; and where there is an entire failure of beneficiaries designated by the statute, the action will not lie.2

'Eureka v. Merrifield, 53 Kan. 794; s. c. 37 Pac. Rep. 113; Louisville &c. R. Co. v. Jones, Fla. —; 8. c. 34 South. Rep. 246; Huberwald V. Orleans R. Co., 50 La. An. 477; S. c. 23 South. Rep. 474; Brown v. Chicago &c. R. Co., 102 Wis. 137; 8. c. 78 N. W. Rep. 771; 77 N. W. Rep. 148. Under the Texas constitutional provision for the bringing of

an action for exemplary damages by the surviving husband, wife, or heirs of his or her body, of one who has been killed by gross negligence, no one else can bring such action; hence such an action by a parent cannot be maintained: Winnt v. International &c. R. Co., 74 Tex. 32; s. c. 11 S. W. Rep. 907.

2 James v. Richmond &c. R. Co., 92

§ 7043. Personal Representative-Definition.-Lord Campbell's Act provides that the action shall be brought in the name of the "executor or administrator." Many of the later statutes in this country have changed this wording, in enacting laws similar to the British Act, so as to provide that "every such action shall be brought by and in the name of the personal representative of such deceased person." This has given rise to the question, Who are the personal representatives? which has been answered by construing the words to mean the executor or administrator, and not the next of kin, even