(Montgomery County Common Pleas,

1900.)

#### JACOB WITTMAN’S Executrix v. C. H. & D. R. R. Co.

Under section 6135 R. S., which provides that actions for damages for wrongfully causing the death of a person, as provided by sec. 6134 R. S., shall be brought in the name of the pers.onai representative of the deceased, an executor as well as an administrator of the deceased may bring such action.

Demurj-er to petition.

Brown, J.,

This cause comes before the court on a demurrer to the amended petition, on the ground that upon the face of the amended petition it appears that the plaintiff has no legal capacity to sue.

The .petition sets out the usual averments, the appointment and qualification of Clara H. Wittman as executrix of the estate of Jacob Wittman, deceased.

Counsel for the defendants contends that under sections 6134 and 6135, Revised Statutes, an executrix cannot maintain an action and has no legal capacity to sue, and that the only person who can bring such a case is the administrator or administratrix.

Counsel for defendant also contends that the executrix is the trustee only of the deceased person for the purpose and to the extent provided in the will, and that the will directs and gives the executor whatever power he may have to administer and distribute the estate of the deceased, while the administrator or administratrix is the representative or trustee .of the deceased for the purpose of administering the estate according to law ; that the executor' or executrix executes the will of the deceased according to the terms of the will; that the administratrix or adminslralor administers the estate of the deceased according to law. And then, by virtue of this statute, he is the trustee and in his name a suit can be prosecuted to recover damages by the next of kin for the wrongful death of a party.

There is no case in the state of Ohio which exactly covers this point and as the question has been frequently mooted and discussed, counsel and the court have made rather thorough investigations'.

I find that the general form of the statute has been copied from the 9th and 10th Victoria, C. 93, section 1 (1849), known as Lord Campbell’s act. This statute provides that whensoever the death of the person shall be caused by a wrongful act, neglect or default and the act, neglect or default, is such as would if death had not ensued have entitled the party injured to maintain an, action and recover damages, that he person who would have been liable had death not ensued shall be liable to an action for damages notwithstanding the death of the injured person, and that every such action shall be for the benefit of the wife, husband, parent or child of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased.

The substance of this statute was enacted by congress February 17, 1885, at the second session of the forty-eighth congress and applies to the District'of Columbia. This is drawn in the same language nearly as the British statute, except that it limits the amount of recovery to ten thousand dollars, and provides that the action shall be brought by and in the name of the personal representative of such deceased person.

The Ohio statute, section 6134, has a similar provision, and section 6135 provides that such action shall be for the benefit of the wife or husband or children, or if there be neither of them, then of the parents and the next of kin of the person whose death shall be so caused, and it shall be brought in the name of the personal representative pf the deceased, and limits the recovery to ten thousand dollars.

Similar statutes have been enacted in nearly every state of the Union, and the provision that the action shall be brought in the name of the personal representative predominates in the different states, but in some of them the statute provides that the action shall be brought in the name of the executor or administrator of the deceased person. The statutes provide that the action shall be brought in the name of the personal representative in the following states: New York, in 1880 (later changed to executor-or administrator), New Jersey, Illinois, Michigan, Indiana, Wisconsin, California, Minnesota, Delaware, Kansas, Kentucky, Nebraska, Nevada, Arkansas, Pennsnlvania, Tennessee. Utah, Vermont, Virgina, West Virginia. The statutes provide that if shall be brought in the name of the executor or administrator in Massachusetts, Arkansas, Connecticut, North Carolina, South Carolina, and in Rhoad Island by executor or adminis*280trator, or' if there is a widow and no children, by her in her own name; in Texas the action shall be brought by the parties entitled to the benefit of’ the action, and if they fail to bring suit in three months after the death of the deceased, then by the executor or administrator unless notified by the parties entitled thereto not to prosecute. This action shall be brought in Iowa by the legal' representatives of the deceased; in Maryland, in the name of the state for the benefit of the next kin; in Missouri, by the real party in interest.

Bouvier’s Law Dictionary defines representatives as “The executors or administrators of the persons deceased.’ ’

Lawson’s Rights and Remedies and Practice, Vol. ■ 3,' section 1018: “Lord Campbell’s act gives the action to the executor-or administrator of the person killed, and so do the statutes of many of the stales.' Where the action is given to the personal representatives, this means the executor or administrator and not the next kin;” and cites numerous decisions.

■ It has frequently been decided in this state that “the action being the creature of the statute must be governed by the statute.” Wolf v. Railway Co., 55 Ohio St., 517, 527, and that 'terms shall be construed in their ordinary acceptation and significance consistent with common sense. Allen v. Little, 5 Ohio, 65; State v. Peck, 25, O. S., 26; Norris v. State, 25 O. S., 217.

Werner on American Law of Administration, page 906, says: “The term personal representatives applies strictly to the executors and administrators.”

Thompson on Negligence, Vol. 2, page 1276, section 77, says: “Lord Campbell’s act provides that the action shall be brought in the name of the executor or administrator.' It will be seen by referring to the statutes that many of the states have changed this wording in enacting laws s'milar to the British act so as to provide that ‘every such action shall be brought by and in the name of the personal representatives 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.”

Judge Dillon, in Hagen v. Kean, third Dillon’s C. C., 125, says, commenting on the Illinois statute, which is similar to the Ohio statute: “The right of action in a case of this kind is created by statute and it must be brought by and in the name of the person whom the statute describes shall bring it, that is, the personal representative of the deceased, and these words in the statute of Illinois have been authoritatively construed by the Supreme Court of that stale to mean ‘the executor or administrator.’ ”

In City of Chicago v. Mayor, 18 Ills., 357, the court, commenting on the statute which provides that the action shall be brought in the name of the personal representative, say: "The action under this statute is to be brought by the personal representatives, that is, by the executors or administrators,” and the syllabus, second clause, says: “The action under this statute is to be brought by the executor or administrator of the deceased.”

Kramer v. Railroad Co., 25 Cal., 436, Chief Justice Sanderson for the full court commenting upon his statute, says: “The words personal representatives as used in this act mean the administrator or executor of the deceased.”

Hartigan v. Southern Pacific Co., 86 Cal., 142, is a case in which suit was brought by the executor of the last will of the deceased under the California statute, which has the same provision as the Ohio statute, that the suit may be brought in the name of the personal representatives. In this action the executor, with the approval of the court compromised the case. The court held that the executor as the personal representative, is the proper person, or had the legal right to bring the suit, and that the compromise was valid, and the plea in abatement to the action of Lhe heirs was sustained.”

In 18 Am. & Eng. Ency. Law, page 407: “The words personal representative must in the absence of other controlling words be taken to mean person claiming as executor or administrator.”

The Supreme Court of Wisconsin, in Whiten v. Railroad Co., 21 Wis., 305: The statute pioviding that such action shall be brought in the name of the personal representative of the deceased, the court say that such action must be brought by the executor or administrator.

Boutilier v. Steamboat “Milwaukee,” 8 Minn., 73, in a long opinion covering the point raised by this demurrer, the court says, commenting upon a statute and provision similar to our own, that the action shall be brought in the name of an administrator or executor.

In 68 Mich., 135, the deceased left a will and named an executor. The widow requested the executor to commence cuit under a similar statute and he declined. After the executor was discharged, the widow was appointed administratix. It was claimed that the probate court had no jurisdiction "to make such appointment and therefore the administratrix had no power to commence such action. The court, Judge Champlin rendering the decision, says: “The liability created by the statute in cases of this kind is a chose in action which is assets belonging to the personal representative, and if the executor named in the will refuses to prosecute or reduce the assets to a chose in possession for the nurpose of distribution, un*281der the statute another may be appointed 10 complete the administration."

In Re Windom's Trust L. R., 1 Equity Cases 290: "Personal representative means executor or administrator.”

“The words personal representative are to be understood in the ordinary sense of executors and administrators unless controlled by the context to the will.’ Siberton v. Skeels, 5 Eng. Chan. Rep., 587.

Used in the ordinary sense to arrive at a proper understanding of this statute, the same rule would apply and the words personal representative as used in the Ohio statute evidently means executor or administrator .

Therefore the demurrer will be overruled.