Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1858-08-25


It Is assumed that, inasnuch & BY Re wrongful
act of the defendants, the widow and shild hsva
been deprived OF the means Of support and main
tainanee, for which they we're dependsnt on the de-
ceased the object and intention Of the Legislature
vas % substitute The damages 10 be recovered for
the wrong Of the defendeRts, as mesnsS to some
extent Of future support and maintainaDce for the
widow and Chile; and shat, consequently. from the
very nature OF the case the widow cannot be al.
lo#edte release or transfer her fHterest in che dem~
ages to Be reooTere because 10 90 so, would be to
defeat the sole purpose Of the law; and that the
principle Of policy which forbids the assignment
Of bouusss and gratitude, conferred BIZ the govern
ment on individuals, applies By analogy to this case.
We dc not concur in this reasoning We perceive
no sound principle upon which the widow Of the de-
ceased-she being si juris-can be forced to accept
against her will; or be hindered from reuouncings
the benefit intended TO be secured 10 her By the
statute, SO far as her individual interest in the
recovery is concerned.
It is said in the next place. that The release was
imperative, because there was present exciting
interest in the widow upon which il could operates
that mere contingent right 10 recover uncertain
damages, in an action for personal wrong, is not
such interest as can be either reersed gned
1t is certainly true, that claim arising out Of
mere personal tort which dies with the party and
does not survive TO his persona rePresentaiiVe, s
not recognized by Law; and consequently Is not the
subject of a release or assignment.
But it Is otherwise, when, as IN the present case,
the right Of action to recover damages for the wrong,
survives 10 the personal Representatives. Hence by
the express provision Of the statute, the action is
declared to exist in favor of the personal represen
taive; and The damages recovered, are placed upon
the fOotiDg-as regards the rights of the widow
and next of kin respeetively-as the personal pro
! perry, and assets of the deceased; and are to be
distributed between them according to the statute
of dstrbuhOns-sueh is The express provision OF the
! statute.
By the provision; that 'sthe amount recovered is
to be for the exclusive benefit Of The widow and nex
Of KIM il was not that it should rest in then
jointly for this would be in direct opposition to the
subsequent provision that il should be distributed
TO them in The same proportions IS the persona
property of the deceased person" BY that provision
it was merely intended to exclude all claim on th'
the part OferedtOrs Of the deceased, to any part
the damages recovered.
But, tits supposed that If the release can be hell
operative for any purpose it would inuTe to tbs
benefit Of the defendants in the action and not to thu
benefit of the next of kin. In other words, that
release by the widow Of her interest in the damages
to be recovered, would have the effect not to trans
fer her inerestto the next Of kim but to diminish, Il
that extent, the damages to be recovered agains
the defendants This position is plausible, but Vi
are not prepared to admit that it is correct 7s~
Il would seem to follow from the principles befoF
stated, that the widow has assgnable interest II
the Iecovery and if the release be framed with tina
view, we perceive no sufficient reason why it shoul
not be held operative to transfer herinterest 70 III
remaining benefeiaries in the suit.
But no instruction 10 the Jury was asked in re
spect to the effect Of the release does it appea
from anything in the record, how the Jury treate
It, and, therefore, this question can scarcely be con
sidered as properly arising upon the record
judgment affirmed. MCKINNEY.
Test: NJ. d. WEIGH, Clerk.