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in the case of a deceased child, although the child has left a father, mother, or guardian. Where this language is used the personal representative must bring the action, although the amount recoverable may be exempt from the payment of debts of the deceased; and the action, when so instituted by the administrator or executor, is not brought for himself, nor in the right of the estate, but as the trustee for the distributees under the statute.8 In Kentucky, under the statute which provides that in certain events the recovery may become a part of the estate, the action may be brought by the personal representative of the deceased although he left neither widow nor child.

$7044. Special and Ancillary Administrators.-The requirement that the action shall be instituted by the personal representative does not prevent action by special,10 temporary, or ancillary administrators. So, in Connecticut, it has been held that, where the death of a person occurred in that State, while his domicile was in another

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ative, the court is not prepared to say the beneficiaries may not sustain the action.

'Schleiger v. Northern Terminal Co., 43 Or. 4; s. c. 72 Pac. Rep. 324. But a parent may sue as administrator of his deceased infant son to recover for negligence in causing the death of the latter, under Burns' Rev. Ind. Stat. 1901, § 285 (Rev. Stat. 1881, § 284), instead of suing as parent under section 267 (Rev. Stat. 1881, § 266), where the minor has been emancipated: Berry v. Louisville &c. R. Co., 128 Ind. 484; S. c. 28 N. E. Rep. 182. Burns' Rev. Ind. Stat. 1901, § 267 (Rev. Stat. 1881, § 266), providing that in certain cases a guardian may sue for injury or death of his ward, and that in a suit for injury the damages shall be for the benefit of the ward, gives a guardian no right of action for the death of a minor instantly killed, who has a mother living, where the guardian has paid no expenditures from the property of the ward as a result of the accident: Louisville &c. R. Co. v. Goodykoontz, 119 Ind. 111; s. c. 21 N. E. Rep. 472.

Stewart v. Louisville &c. R. Co., 83 Ala. 493; s. c. 4 South. Rep. 372; Columbus &c. R. Co. v. Bradford, 86 Ala. 574; s. c. 6 Rail. & Corp. L. J. 111; 6 South. Rep. 90; Goodwin v. Nickerson, 17 R. I. 478; Railroad v.

Johnson, 97 Tenn. 667; s. c. 34 L. R.
A. 442; 37 S. W. Rep. 558.

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Chicago &c. R. Co. v. O'Conner, 119 Ill. 586; s. c. 6 West. Rep. 773; Mayhew v. Burns, 103 Ind. 238; s. c. 1 West. Rep. 577; Martin v. Missouri &c. R. Co., 58 Kan. 475; s. c. 49 Pac. Rep. 605; 7 Am. & Eng. R. Cas. (N. S.) 576; Union Pac. R. Co. v. Dunden, 37 Kan. 1; s. c. 14 Pac. Rep. 501.

East Tennessee Teleph. Co. v. Simm, 99 Ky. 404; s. c. 18 Ky. L. Rep. 167, 761; 36 S. W. Rep. 171; 38 S. W. Rep. 131; Lexington &c. Min. Co. v. Huffman, 17 Ky. L. Rep. 775; s. c. 32 S. W. Rep. 611 (no off. rep.).

10 Swan v. Norvell, 107 Wis. 625; s. c. 83 N. W. Rep. 934; Hodges v. Kimball, 91 Fed. Rep. 845.

11 Louisville &c. R. Co. v. Chaffin, 84 Ga. 519; s. c. 11 S. E. Rep. 891.

12 Hoes v. New York &c. R. Co., 73 App. Div. (N. Y.) 363; s. c. 77 N. Y. Supp. 117; Lang v. Houston &c. R. Co., 75 Hun (N. Y.) 151; s. c. 58 N. Y. St. Rep. 594; 27 N. Y. Supp. 90; Illinois &c. R. Co. v. Crudup, 63 Miss. 291. A New Jersey administrator may maintain an action for wrongful death in Pennsylvania, where the cause of action arose in New Jersey, without an ancillary administration being appointed in Pennsylvania: Boulden v. Pennsylvania R. Co., 205 Pa. St. 264; s. c. 54 Atl. Rep. 906.

State, his administrator might take out auxiliary letters of administration for the purpose of prosecuting an action for damages sustained by the intestate's death, although the deceased had no property in Connecticut.13 Special administrators are not necessary under the Indiana statute.14

§ 7045. Beneficiaries and Not Personal Representatives must Sue in Some Jurisdictions.-A few States have statutes which require the action for wrongful death to be brought in the name of those entitled to receive the money if recovered; and in these States the administrator is not the proper party to maintain the action where the deceased left the beneficiaries designated by the statute.15 In Pennsylvania, a surviving widow is the proper party, to the exclusion of other relatives,16 including children;17 and she is not deprived of her right by the fact that she married the injured person after the injury was received.18 In that State, on the death of the statutory beneficiary pending suit, his personal representative may be substituted.19 In Tennessee, the action may be prosecuted by the widow, or, if there be no widow, then by the children; and when prosecuted by the widow alone, the recovery enures to the benefit of the widow and children.20 In Texas, it is provided that the action may be brought by all the parties entitled to recover, or by any one or more for the benefit of all;21 and where all the beneficiaries are not joined, it must appear upon the record that the suit was brought for the benefit of all.22 So, where suit was brought by a husband and wife against

18 Hartford &c. R. Co. v. Andrews, 36 Conn. 213. See also, Jeffersonville &c. R. Co. v. Hendricks, 41 Ind. 49; Kansas &c. R. Co. v. Cutter, 16 Kan. 568.

14 Lake Erie &c. R. Co. v. Charman, 161 Ind. 95; s. c. 67 N. E. Rep. 923.

15 Lower v. Segal, 59 N. J. L. 66; s. c. 34 Atl. Rep. 945; Books v. Danville, 95 Pa. St. 158; Belding v. Black Hills &c. R. Co., 3 S. D. 369; s. c. 52 Am. & Eng. R. Cas. 624; 53 N. W. Rep. 750. A declaration by a widow as administratrix, based on the statute of Pennsylvania, for damages for the death of plaintiff's intestate in that State by defendant's negligence, is demurrable where it discloses that plaintiff is the widow of the deceased, and that by the law of Pennsylvania the action must, in such case, be maintained by the widow instead of by personal representative: Lower v.

Segal, 60 N. J. L. 99; s. c. 36 Atl. 777.

10 Lehigh Iron Co. v. Rupp, 100 Pa. St. 95; Marshall v. Masseli (Pa.), 30 Pittsb. Leg. J. (N. S.) 147.

17 Marsh v. Western &c. R. Co., 204 Pa. St. 229; s. c. 53 Atl. Rep. 1001.

18 Gross v. Electric Traction Co., 18) Pa. St. 99; s. c. 36 Atl. Rep. 424. 10 Haggerty v. Pittston, 17 Pa. Super. 151. See Felton v. Spiro, 78 Fed. Rep. 576; s. c. 24 C. C. A. 321; 47 U. S. App. 402.

20 Illinois Cent. R. Co. v. Davis, 104 Tenn. 442; s. c. 58 S. W. Rep. 296.

21 Tex. Rev. Stat. 1895, art. 3022. See San Antonio St. R. Co. v. Renken, 15 Tex. Civ. App. 229; s. c. 38 S. W. Rep. 829; Texas &c. R. Co. v. Hall, 83 Tex. 675; s. c. 19 S. W. Rep. 121; Galveston &c. R. Co. v. LeGierse, 51 Tex. 189.

Dallas &c. R. Co. v. Spiker, 59 Tex. 435; El Paso &c. R. Co. v.

a carrier in that State for injuries to the wife, and after the wife's death pendente lite the husband was allowed to file an amended petition joining their minor children, alleging a cause of action for the wife's death, it was held that such amendment was not objectionable for misjoinder of parties.23 Under a special statute of Montana, which gives a right of action for wrongful death to the heirs of the person killed, the right of action is held to be joint and to prevent an action by the mother alone where the father is living, even though at the time the question is presented by a plea of abatement, the right of the father to bring an action is barred by limitation.24

$7046. Beneficiary Allowed to Sue where No Personal Representative Appointed.-A Kansas statute25 allows the next of kin to institute the action when no personal representative has been appointed. It has been held, however, that the failure of appointment must be alleged and proved.20

§7047. Heir or Personal Representative may Sue in California.The California Civil Code gives a right of action to the heirs or the personal representative of the deceased;27 but this provision does not authorize actions by both the personal representative and the heirs, and a recovery by one is a bar to an action by the other.28 The stat

Whatley, Tex. Civ. App. ; s. c. 76 S. W. Rep. 589. An allegation in the petition by the widow of one killed by the negligence of defend ant, that the parents of the deceased reside in a foreign country, and did not receive and would not have received from him any pecuniary aid, and that they joined simply for the purpose of having their rights adjudicated finally, does not show that she did not bring the suit in good faith for the benefit of all the parties entitled to recover, as authorized by Tex. Rev. Stat. 1895, art. 3022, when the parents have in fact no right to recover: San Antonio St. R. Co. v. Renken, 15 Tex. Civ. App. 229; s. c. 38 S. W. Rep. 829. Where it appeared from the record an action for negligent death that suit was brought for the sole benefit of deceased's widow, and the evidence showed that deceased's mother was living, and judgment was rendered for plaintiff without the mother's being made a party, de

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23 International &c. R. Co. v. Boykin, 32 Tex. Civ. App. 72; s. c. 74 S. W. Rep. 93.

24 Whelan v. Rio Grande &c. R. Co., 111 Fed. Rep. 326.

25 Kan. Civ. Code, §§ 422, 422a. 28 Atchison Water Co. v. Price, 9 Kan. App. 884; s. c. 59 Pac. Rep. 677; Atchison &c. R. Co. v. Judah, 10 Kan. App. 577; s. c. 62 Pac. Rep. 711.

27 Cal. Code Civ. Proc., § 377. 28 Hartigan v. Southern Pac. R. Co., 86 Cal. 142; s. c. 24 Pac. Rep. 851 (recovery by personal representative).

ute allows suit by the administrator only where there are heirs, as the right of action is for their benefit."

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§ 7048. Who Are "Next of Kin."-The phrase "next of kin" used in these statutes means those kin who inherit from the deceased under the Statutes of Descent and Distribution;3 and hence neither husband nor wife is "next of kin" to each other, at law.31 The next of kin of a minor child who has been adopted, are the next of kin by blood, and not the adopting parent.32 Frequently statutes provide that the amount recovered shall be for the exclusive benefit of the "widow and next of kin." It will be sufficient to maintain the action if there be either a widow or next of kin surviving, but there must be at least one surviving relative of the class named in the statute.33

§ 7049. Dependent Next of Kin.-In some of the States a recovery by next of kin is made to depend upon the fact of their dependency for support upon the deceased. The dependency intended by such statutes means a dependency in fact, and not necessarily a strict legal dependency making the deceased legally liable to furnish them. support. But the mere fact of occasional contributions to the sup

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29 Webster v. Norwegian Min. Co., 137 Cal. 399; s. c. 70 Pac. Rep. 276. 30 Atchison &c. R. Co. v. Ryan, 62 Kan. 682; s. c. 64 Pac. Rep. 603.

31 Bouv. L. Dic., tit. Next of Kin; Redfield v. Oakland &c. St. R. Co., 110 Cal. 277; s. c. 42 Pac. Rep. 822, 1063; Western U. Tel. Co. v. McGill, 57 Fed. Rep. 699; s. c. 21 L. R. A. 818; 6 C. C. A. 521; Townsend v. Radcliffe, 44 Ill. 446; Watson v. St. Paul City R. Co., 70 Minn. 514; s. c. 3 Chic. L. J. Wkly. 71; 73 N. W. Rep. 400; Lucas v. New York &c. R. Co., 21 Barb. (N. Y.) 245; Green v. Hudson River R. Co., 32 Barb. (N. Y.) 25; Dickens v. New York &c. R. Co., 23 N. Y. 158; Drake v. Gilmore, 52 N. Y. 389; Dunhene v. Ohio Life Ins. Co., 1 Disney (Ohio) 257; Worley v. Cincinnati &c. R. Co., 1 Handy (Ohio) 481. But see Steele v. Kurtz, 28 Ohio St. 191.

32 Heidecamp v. Jersey City &c. R. Co., 69 N. J. L. 284; s. c. 55 Atl. Rep. 239. Under Burns' Rev. Ind. Stat. 1901, § 267 (Rev. Stat. 1881, § 266; Horner's Rev. St. 1897, § 266), providing that a father (or, in case of his death, the mother) may sue for damages for injury or death of a child, a woman who is neither the mother of a child nor has legally

adopted it cannot maintain an action for damages for its death, although she has reared it from infancy, and maintained and supported it as her child: Citizens' St. R. Co. v. Cooper, 22 Ind. App. 459; s. c. 53 N. E. Rep. 1092.

35 Chicago v. Major, 18 Ill. 349; Haggerty v. Central R. Co., 31 N. J. L. 349; Lucas v. New York &c. R. Co., 21 Barb. (N. Y.) 245; McMahon v. New York, 33 N. Y. 642; Green v. Hudson River R. Co., 16 How Pr. (N. Y.) 263; s. c. 21 Barb. (N. Y.) 260; Oldfield v. New York &c. R. Co., 14 N. Y. 310; Safford v. Drew, 3 Duer (N. Y.) 627; Baltimore &c. R. Co. v. Gettle, 3 W. Va. 376. In Georgia, a statute (Code 1873, § 2971) which provides for the recovery of damages for physical injuries, and which limits the right of action to the widow, and, if no widow, then to the child or children, for the homicide of the husband or parent, has been held to give no right of action to a husband for the death of his wife: Georgia R. Co. v. Wynn, 42 Ga. 331. See also, Miller v. South-Western R. Co., 55 Ga. 143.

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port of a relative is insufficient to establish the fact of dependency.35 It is not, however, necessary that the deceased should have been the Ga. 134; s. c. 13 Am. & Eng. R. Cas. was insufficient to sustain a recov(N. S.) 548; 31 S. E. Rep. 420; ery for his death: Standard Light Chicago &c. R. Co. v. Branyan, 10 &c. Co. v. Munsey, Tex. Civ. App. Ind. App. 570; s. c. 37 N. E. Rep. -; s. c. 76 S. W. Rep. 931. A child 190; Daly v. New Jersey Steel &c. of decedent was 28 years old at the Co., 155 Mass. 1; s. c. 29 N. E. Rep. time of his death. She had suffered 507 (an invalid sister supported by from childhood from curvature of deceased); Mulhall v. Fallon, 176 the spine. For several years she Mass. 266; s. c. 57 N. E. Rep. 386; had been living with a third person, Welch v. New York &c. R. Co., 176 doing light housework for her supMass. 393; s. c. 57 N. E. Rep. 668; port. At irregular intervals her Welch v. New York &c. R. Co., 182 father gave her at her request monMass. 84; s. c. 64 N. E. Rep. 695; ey in sums of $1 and $2 at a time, Bowerman v. Lackawanna Min. Co., though not to exceed $5 a year, but 98 Mo. App. 308; s. c. 71 S. W. Rep. he gave her money when she asked 1062; Paulmier v. Erie R. Co., 34 for it if he could possibly do so. N. J. L. 151; Keller v. New York &c. It was held that she had a pecuniary R. Co., 17 How. Pr. (N. Y.) 102; interest in the life of her father, Oldfield v. New York &c. R. Co., 14 and was entitled to share in the N. Y. 310; McIntyre v. New York fund recovered for his death: Du&c. R. Co., 37 N. Y. 287; Groten- zan v. Myers, 30 Ind. App. 227; s. c. kemper v. Harris, 25 Ohio St. 510; 65 N. E. hep. 1046. Plaintiff sued, Pennsylvania R. Co. v. Keller, 67 under Me. Pub. Laws 1891, ch. 124, Pa. St. 300; Petrie v. Columbia &c. for the death by wrongful act of his R. Co., 29 S. C. 303; s. c. 7 S. E. intestate, for the benefit of the parRep. 515; Atchison &c. R. Co. v. Van ents of the intestate. Intestate was Belle, 26 Tex. Civ. App. 511; s. c. 23 years old when killed, and his 64 S. W. Rep. 397; Texas &c. R. Co. parents were feeble and infirm, v. Martin, 25 Tex. Civ. App. 204; s. though the father was at times able c. 60 S. W. Rep. 803; Galveston &c. to work. Intestate had learned the R. Co. v. Ford, 22 Tex. Civ. App. stonecutter's trade before coming of 131; s. c. 54 S. W. Rep. 37; Railroad age, and worked at it when he could Co. v. Barron, 5 Wall. (U. S.) 90; get work, turning the money he affg s. c. 1 Biss. (U. S.) 412, 452. earned in to his parents' home, and Evidence that a widowed mother occasionally sent small sums of had no property but her house, and money to his mother. When not no means of support except what employed, he stayed at home, and she received from her sons; that paid board. It was held that the during his father's lifetime intestate parents were pecuniarily injured, so had sent his mother $10; that be- as to entitle them to fair compensasides intestate there were three oth- tion, which would amount to more er sons, who after intestate's death than nominal damages: McKay v. lived with their mother, and paid New England Dredging Co., 92 Me. her $4 a week each for board, and 454; s. c. 43 Atl. Rep. 29. The partwo younger sons, one of whom paid ents of an employé fourteen years her $2 a week, together with evi- old who received an injury resulting dence that intestate had promised in death may be said to have been "in to take care of his mother, was part dependent" on such employé sufficient to show that the widow within the English Workman's Comwas dependent on intestate for sup- pensation Act, 1897, § 7, subs. 2, port: Boyle v. Columbian Fireproof- where he had been employed for five ing Co., 182 Mass. 93; s. c. 64 N. E. weeks before his death, receiving Rep. 726. Where, after deceased 17 shillings per week on the averwas married, he contributed nothing age, which he turned over to his to the support of his parents, and parents, receiving from them such there was no evidence that they pocket-money as they thought needed, or had any reasonable exright: Simmons v. White, [1899] 1 pectation of receiving, any pecuni- Q. B. 1005; s. c. 68 L. J. Q. B. (N. ary benefit from him thereafter had S.) 507. he lived, their mere relationship

5 Georgia R. &c. Co. v. Spinks, 111

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