
    DESCENT AND DISTRIBUTION — WRONGFUL DEATH.
    [Cuyahoga (8th) Circuit Court,
    March 4, 1907.]
    Winch. Henry and Marvin, JJ.
    Katherine Miller v. Andrew Miller et al.
    Recovery for Wrongful Death foe Exclusive Benefit of Husband or Wife.
    Where a resident of this state meets death hy wrongful act in the state of New York and his widow being appointed in Ohio -administrator of his estate settles the claim for the wrongful death without suit, the proceeds of such settlement are to be distributed under Rev. Stat. 6134, 6135 (Lan. 9673, 9675), which provide that actions by an administrator to recover for the wrongful death of intestate shall be for the exclusive benefit of the wife or husband, and children. Hence, the father of the deceased is not entitled to share as a distributee of such funds.
    [Por other cases in point, see 3 Cyc. Dig., “Executors and Administrators,” §§ 408-425. — Ed.]
    [Proof of this decision and syllabus was submitted to Judge Marvin and corrected. — Ed.]
    Error to Cuyahoga common pleas court.
    Smith, Taft & Arter, for plaintiff in error.
    E. P. Strong and Smith, Taft & Arter, for defendants in error:
    Conflict of laws. Snedecker v. Snedecker, 47 App. Div. 471 [63 N. Y. Supp. 580] ; Ott v. Railivay, 10 Circ. Dec. 85 (18 R. 395) ; affirmed, Ott v. Railway, 62 Ohio St. 661; Alexander v. Pennsylvania Co. 48 Ohio St. 623 [30 N. E. Rep. 69] ; Steel v. Kurtz, 28 Ohio St. 191; Wolf v. Railway, 55 Ohio St. 517 [45 N. E. Rep. 708; 36 L. R. A. 812]; Stuber v. McEntee, 142 N. Y. 200 [36 N. E. Rep. 878]; Wilson v. Tootle, 55 Fed. Rep. 211; McDonald v. McDonald, 16 Ky. Law 412 [28 S. W. Rep. 482] ; Merrell v. McMahon, 7 Dec. 136 (5 N. P. 77) ; Johnston v. Railway, 7 Ohio St. 336 [70 Am. Dec. 75] ; Leonard v. Navigation Co. 84 N. Y. 48 [38 Am. Rep. 491] ; Debevoise v. Railway, 98 N. Y. 377 [50 Am. Rep. 683]; Safford v. Drew, 3 Duer 627; Lucas v. Railivay, 21 Barb. 245; Cincinnati Trac. Co. V. Forrest, 73 Ohio St. 1; Usher v. Railway, 126 Pa. St. 206 [17 Atl. Rep. 597; 4 L. R. A. 261; 12 Am. St. Rep. 863] ; Dennick v. Railway, 103 U. S. 11 [26 L. Ed. 439] ; Stoeckman v. Railway, 15 Mo. App. 503; Missouri Pac. Ry. v. Lewis, 24 Neb. 848 [40 N. W. Rep. 401; 2 L. R. A. 67] ; Weaver v. Railway, 29 D. C. 499; Stewart v. Railway, 168 U. S. 445 [18 Sup. Ct. Rep. 105; 42 L. Ed. 537]; Degaramo’s Estate, Matter of, 86 Hun. 390 [33 N. Y. Supp. 502] ; Minor, Conflict of Laws 495, Sees. 201, 202; Woodard v. Railivay, 10 Ohio St. 121; Mover v. Pennsylvania Co. 25 Ohio St. 667; Brooks v. Railway, 53 Ohio St. 655 [44 N. E. Rep. 1131] ; Railway v. Fox, 64 Ohio St. 133 [59 N. E. Rep. 888; 83 Am. St. Rep. 739] ; Balt. & O. Ry. v. Chambers, 73 Ohio St. 16; Wooden v. Railway, 126 N. Y. 10 [26 N. E. Rep. 1050; 13 It. R. A. 458; 22 Am. St. Rep. 803]; Railway v. Fulton, 59 Ohio St. 575 [53 N. E. Rep. 265; 44 L. R. A. 520] ; Pitts. C. & St. L. Ry. v. Hine, 25 Ohio St. 629; Wolf v. Railway, 55 Ohio St. 517 [45 N. E. Rep. 708; 36 L. R. A. 812].
   MARVIN, J.

The facts in this case are, that one Anthony Miller, a citizen and resident of Cuyahoga county, Ohio, was killed on July 2, 1905, in Erie county near Buffalo, New York, by the wrongful act of the Buffalo and Depew Railway Company; he died intestate, without issue, leaving the plaintiff in error, Katherine Miller, his widow, and his father, Andrew Miller, a man of property and not dependent upon said Anthony Miller for support. Katherine Miller was appointed administrator of the estate of her deceased husband by the probate court of Cuyahoga county. "Without bringing an action against the railroad company for the wrongful death of her husband, she compromised the claim growing out of such death for the sum of $4,000. This was done with the approval of, and was confirmed by, said probate court. Upon motion duly made in that court for an order of distribution of this fund, it was ordered that one-half of the amount be paid to the said Andrew Miller and one-half to the said Katherine Miller. From this order an appeal was taken to the court of common pleas, and upon the hearing the same order was made, in that court, and to said last named order error is prosecuted here.

The statutes of the state of New York bearing upon the case, were introduced in evidence and are contained in the bill of exceptions filed in this court.

The action of the court in making the order complained of is claimed to be justified, because, it is said,, the order is in conformity with the distribution which would be required to be made under the laws of the state of New York; that an action for damages caused by this death could not have been maintained m the state of New York but for the statutes of that state authorizing such action,' and that it follows that the distribution must be made in accordance with those statutes.

A large number of authorities are cited in support of the proposition that distribution of funds obtained in an- action to recover damages for wrongful death, must be distributed in accordance with the statutes of the state in which the wrongful act was done.

Among these authorities see Dennick v. Railway, 103 U. S. 11 [26 L. Ed. 439] ; McDonald v. McDonald, 16 Ky. App. 412 [28 S. W. Rep. 482] ; Weaver v. Railway, 28 D. C. 499.

There are so many authorities in support of the proposition that it cannot be denied that, unless by reason of the statutes of Ohio, the rule that the distribution must be. made in accordance with the statutes of the state in which the death is caused, is changed, the distribution must be made in accordance with the statutes of such state.

It is said, however, that even if this be the rule still the distribution would be made as provided by the laws of Ohio in this particular case, because it is provided by Sec. 1903 of 'the statutes of New York, as appears by the bill of exceptions:

“The damages recovered in an action, brought as prescribed in the last section, are exclusively for the benefit of the decedent’s husband or wife, and next of kin; and, when they are collected, they must be distributed by the plaintiff, as if they were unbequeathed assets, left in his hands, after payment of all debts, and expenses of administration. But the plaintiff may deduct therefrom the expenses of the action, and his commissions upon the residue; which must be allowed by the surrogate, upon notice, given in such manner and to such persons, as the surrogate deems proper.”

It is urged, as it does not appear from this section, that the distribution is to be as of “unbequeathed assets,” under the statutes of New York, that the administrator in Ohio having the fund in his hands, and being réquired by the statute of New York to distribute the same as “unbequeathed assets left in his- hands after payment of all debts and expenses of administration,” this may fairly be interpreted to be a direction to such Ohio administrator to distribute the fund as he would distribute “unbequeathed assets” under the laws of Ohio, and therefore would distribute this entire fund to the widow, and, in support of this contention, the case of Hartley v. Hartley, 71 Kan. 691 [81 Pac. Rep. 505], is cited.

"Whatever may be said as to whether the law is properly stated in this case, it does not support the contention of the plaintiff in error, because it is further provided by Sec. 1905 of the statutes* of New York that,

“The term ‘next of kin,’ as used in the foregoing sections (in-eluding Sec. 1903), has the meaning specified in See. 1870 of this act.”

And Sec. 1870 provides that,

“The term ‘next of kin,’ as used in this title, includes all those entitled under the provisions of law relating to the distribution of personal property, to share in the unbequeathed assets of a decedent, after payment of debts and expenses, other than a surviving husband or wife, ’ ’ after the payment of debts and expenses.

So that, when Secs. 1905 and 1870 are read in explanation of the meaning of Sec. 1903,- it is clear that the provision contained in the last named section requires the distribution to be made to the, in this case, surviving wife, and those next of kin, who are defined in Secs. 1905 and 1870,

It follows that the order of distribution made in this case was the proper order to be made, unless our own statutes distinctly provide otherwise.

Attention is called to Rev. Stat. 6134 (Lan. 9673), which provides for a right of action against the person, natural or artificial, causing death by wrongful act,' in Ohio.

Revised Statute 6135 (Lan. 9675), provides who shall be the beneficiaries- of the fund derived from such action.

On March 25, 1851, the first statute in Ohio providing for an action against one causing death by wrongful act, was passed. This statute is found in 2 Curwen 1673, and consists of two sections; the first is, so far as it has application to the case now under consideration, substantially the present Rev. Stat. 6134 (Lan. 9673), and the second, substantially our present Rev. Stat. 6135 (Lan. 9675).

These provisions were carried into the revision of 1880, with the present sectional numbers.

On May 21, 1894 (91 O. L, 408), the legislature enacted Rev. Stat. 6134a (Lan. 9674). This Sec. 6134a was amended and placed in its present form on May 6, 1902 (95 O. L. 401). The enactment of 1894 reads:

“An act to supplement Sec. 6134 [Lan. 9673] of the Revised Statutes of Ohio, Sec. 1. Be it enacted by the general, assembly of the state of Ohio, that- Sec. 6134 [Lan. 9673] of the Revised Statutes be supplemented as follows:
“Section 6134a [Lan. 9674],” and then follows the supplementary section.

The amendment of Rev. Stat. 6134a (Lan. 9674) is entitled an act to amend Rev. Stat. 6134a (Lan. 9674), and reads: “Be it enacted by the general assembly of the state of Ohio, Sec. 1, That Sec. 6134a [Lan. 9674] of tbe Revised Statutes of Ohio be amended so as to read, as follows,” and then follows the present Rev. Stat. 6134a (Lan. 9674) and this reads:

“Whenever the death of a citizen of this state has been or may be caused by a wrongful act, neglect or default in another state, territory or foreign country, for which a right to maintain an action and recover damages in respect thereof is given by a statute of such other state, territory or foreign country, such right of action may be enforced in this state within the time prescribed for the commencement of such action by the statute of such other state, territory or foreign country.”

As has already been said, Rev. Stat. 6135 (Lan. 9675) provides for the distribution of the funds obtained by such action, and the provision is:

“Every such action shall be for the exclusive benefit of the wife or husband, and children,” etc.

Clearly then, if this wrongful death had been caused in Ohio, under the facts in this case, the widow would have been entitled to the entire amount collected, and it can hardly be doubted that if Rev. Stat. 6134a (Lan. 9674) had been a part of the original act the distribution would have been to the widow alone in this case.

It is urged, however, on the part of the defendant in error that Rev. Stat. 6134a (Lan. 9674) is to be treated as an independent section, and that therefore the words of Rev. Stat. 6135 (Lan. 9675), “Every such action shall be for the exclusive benefit,” etc., refer only to such action as is named in Rev. Stat. 6134 (Lan. 9673). We do not so understand it.

The legislature in terms have said, in enacting Rev. Stat. 6134a (Lan. 9674), that it is a supplement to Rev. Stat 6134 (Lan. 9673). The word “supplement” is defined in .Webster’s Dictionary as meaning : “To fill up or supply by additions; to add to.C And, in Anderson’s Law Dictionary, the word “supplemental” is defined in these words: “Added to a thing to complete it; supplying a defect in something that precedes,” etc. So that by the enactment of Rev. Stat. 6134a (Lan. 9674), the legislature added to Rev. Stat. 6134 (Lan. 9673), and Rev. Stat. 6134a (Lan. 9674) became a part of the same statute as Rev. Stat. 6134 (Lan. 9673), and unless we are to assume that the legislature meant that although it was added to Rev. Stat. 6134 (Lan. 9673), yet that Rev. Stat. 6135 (Lan. 9675) should not apply to Rev. Stat. 6134a (Lan. 9674), then it is clear that our own statute directs the manner of distribution of this fund; we think it will not do to say that the legislature overlooked the provisions of Rev. Stat. 6135 (Lan. 9675) when it enacted Rev. Stat. 6134a (Lan. 9674). The last-named section has been before the legislature twice, as already pointed out, and it can hardly be doubted that it intended to leave Rev. Stat. 6135 (Lan. 9675) to apply to that section as well as Rev. Stat. 6134 (Lan. 9673)..

That being so, we have the case of an administrator appointed in this state, acting under the authority of a court in this state, and acting so far as the disposition of the funds in his hands is concerned, under the control of a court of this state, and we have a statute of this state directing the manner of the distribution of funds obtained (as these funds wei'e), whether obtained by reason of wrongful death caused in this state, under Rev. Stat. 6134 (Lan. 9673), or by reason of wrongful death caused in some other jurisdiction, under Rev. Stat. 6134a (Lan. 9674) yet, by Rev. Stat. 6135 (Lan. 9675), it is provided that the funds arising from “every such action shall be for the exclusive benefit,” etc.

Entertaining these views we hold that the judgment of the court' of common pleas should be reversed, and under the conceded facts in this ease the order should have been, that this entire fund be paid to the plaintiff in error, Katherine Miller, and it is so ordered here.

Winch and Henry, JJ., concur.  