fact that the result might be to suspend the absolute ownership of the trust estate during two additional lives beyond that of the original beneficiary, saying: "The person in whom an expectant estate is vested has the same control over the interest which he thus possesses as though he were in actual possession of the property representing the estate. He may deal with it in precisely the same manner."

In Genet v. Hunt, supra, the trust deed under consideration was made by Caroline M. Field in contemplation of her marriage with George S. Riggs, its purpose being to secure to her the income of her property during the marriage free from the control of her husband, and to secure the principal to her if she survived, or in the event of her death to her appointees by will, or to her heirs. After declaring that the deed created a valid trust for the joint lives of Mrs. Riggs and her husband, Judge Andrews, who wrote for a majority of the court, observes: "If Mrs. Riggs remained the absolute owner of the property after the execution of the trust deed, subject only to the estate of the trustees for her life, the trusts in the will would be valid. The reversion in the case supposed would be property which she could grant or devise and limit future estates thereon in her discretion, subject only to the restriction that they must vest in absolute ownership within two lives in being at their creation." Judges Earl, Finch, and Peckham concurred in this opinion. Judges Gray and Danforth dissented, but placed their dissent on a ground which necessarily involved concurrence in the correctness of the proposition which I have quoted from the opinion of Judge Andrews. Chief Judge Ruger did not vote. We have here a clear and unequivocal expression of opinion upon the question of law which is the turning point in the case at bar. It may be said that it was not absolutely necessary to a determination of the appeal; but it was germane to the consideration and discussion of the issues involved, and it undoubtedly represents the deliberate conclusion of this court as then constituted upon the meaning and effect of the statute declaring what are the qualities of expectant estates. It is in precise accordance with a previous judicial utterance by the Appellate Branch of the Supreme Court made through one of the ablest lawyers who ever sat upon that bench. It seems to me to be the natural, if not the necessary, interpretation of the statutory provision; and, if so, I do not see why we should hesitate to follow it simply because it has not the same authority as it would have if a determination of the precise question had been essential to the determination.

The views which I have expressed lead to the conclusion that the learned court at Special Term was right in treating the trust deed and the will as separate instruments differing essentially in their character, and In holding that the validity of the testa

mentary disposition of the trust property as a part of the testator's residuary estate was not affected by the deed of trust. It must freely be conceded that this conclusion permits the owner of an expectant estate in personal property to suspend the absolute ownership for more than two lives in being by means of different instruments; but this result is by no means so alarming in contemplation as counsel seem to apprehend. Most attempts to suspend the absolute ownership of personal property for more than two lives in being, or to evade the rule against perpetuities applicable to real estate, are made by means of wills rather than by means of deeds; and a will, whatever its form, can never be more than one instrument in the view of the law. At most, even through the agency of trust instruments relative to estates in expectancy, the absolute ownership can be suspended only during lives in being, and this was permitted by the common law. The question involved in this case is one of technical law, pure and simple, and, as Professor Gray has well said in his work on the Rule of Perpetuities, "in no part of the law is the reasoning so mathematical in its character. None has so small a human element."

The judgment of the Appellate Division should be reversed, and that of the Special Term affirmed, with costs to all parties appearing in this court and filing briefs, payable out of the fund.

CULLEN, C. J., and GRAY, EDWARD T. BARTLETT, HAIGHT, WERNER, and HISCOCK, JJ., concur.

Judgment accordingly.

(77 Oh. St. 395) MAHONING VALLEY RY. CO. v. VAN ALSTINE.

(Supreme Court of Ohio. Jan. 21, 1908.) 1. ABATEMENT AND REVIVAL-DEATH-INJURIES CAUSING DEATH.

Section 5144, Revised Statutes, gives to the personal representative of a deceased person the right to prosecute an action for injuries to person began by such deceased to recover in the interest of the estate such damages as were suffered by the deceased because of the wrongful acts of another, even though the death was the direct consequence of the injuries inflicted.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 1, Abatement and Revival, §§ 261-264.] 2. DEATH--RIGHT OF ACTION.

Sections 6134 and 6135, Revised Statutes, give an independent right of action for the benefit of the persons named in section 6135, where death has resulted from the injuries, to recover for such pecuniary loss as they have sustained by the decease of the injured person. Such right being subject to the condition that the act. neglect or default is such as would have entitled such person to maintain an action and recover damages in respect thereof if death had not ensued.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Death, §§ 33-46.]

3. JUDGMENT-RES JUDICATA.

The two actions, although prosecuted by the same personal representative, are not in the

same right; and hence a recovery and satisfaction in one case is not a bar to a recovery in the other.

(Syllabus by the Court.)

Error to Circuit Court, Mahoning County. Action by Thomas B. Van Alstine against the Mahoning Valley Railway Company. Judgment for defendant was reversed in the circuit court, and defendant brings error. Affirmed.

Action was brought in the common pleas of Mahoning by defendant in error as administrator of the estate of Alice M. Baird, deceased, in the interest of the next of kin of said deceased, against the plaintiff in error, the Mahoning Valley Railway Company, a street railway corporation, to recover for the alleged wrongful and negligent killing of said deceased, who was at the time of the accident, April 11, 1901, a passenger on a car of the said company, and who died October 3d thereafter. As a defense to such action, it was pleaded by the company in its answer, in substance, that said deceased, during her life, to wit, August 3, 1901, commenced an action against the company to recover compensation for all the injuries she received and all damages sustained on account of the same alleged negligent acts of the company which are described and complained of by the plaintiff herein; that while said action was pending said Alice M. Baird deceased, and. thereupon, on December 17, 1901, her said civil action was, on the motion of her administrator, Thomas B. Van Alstine, duly revived by order of court, and was thereafter prosecuted in the name of said administrator to final judgment against said defendant company, which said judgment and all costs of the action have been fully paid and satisfied by the said company. The wrongful and negligent acts averred and stated in the petition filed by said Alice M. Baird in her said action are precisely and identically the same wrongful and negligent acts of defendant averred and stated by plaintiff herein, and the cause of action upon which said Alice M. Baird sought to recover and upon which said final judgment was rendered is precisely and identically the same cause of action upon which recovery is sought against defendant in this action, and by the record of said final judgment rendered the said administrator is concluded and estopped from the further prosecution of this action. To that answer the administrator replied, in substance admitting that the wrongful and negligent acts of the company averred and stated in the action on which final judgment was rendered are the same wrongful and negligent acts of the company averred and stated by this plaintiff in his pleading herein, but, in substance, denied that the cause of action upon which said Alice M. Baird sought to recover and upon which final judgment was rendered is precisely and identically the same cause of action stated and averred in the pleading herein and up

on which recovery is sought against defendant in this action, denying, also, that by the record of said final judgment he is concluded and estopped from the further prosecution of this action; and for further reply averred, in substance, that by an amendment filed by said administrator December 28, 1901, to the original petition of Alice M. Baird in her action, and by a disclaimer filed by said administrator June 3, 1902 (said dates being prior to the time of trial of said case), said administrator dismissed all claims for damages made by Alice M. Baird during her lifetime, in the petition by her filed, except for. compensation for the pain and suffering endured by her from the time of injury complained of in her petition to the time of her death, the period of 160 days, and that said judgment so recovered by said administrator against said company in said action represented only compensation for the pain and suffering endured by said Alice M. Baird for the period of 160 days, and was not recovered for, or paid to, the individuals for whose benefit this action has been brought. In the common pleas a general demurrer to the reply was filed, which being sustained, the plaintiff not desiring to further plead, judgment was rendered against the plaintiff and for costs. On error to the circuit court that judgment was reversed, and the cause ordered remanded to the common pleas for further proceedings. The company brings error.

Arrel, Wilson & Harrington, for plaintiff in error. Murray & Koonce and Mark M. Gunlefinger, for defendant in error.

SPEAR, J. (after stating the facts as above). It will be observed that the question of difference is not whether or not the acts of negligence alleged and relied upon in the two actions were identically the same, but rather whether or not the cause of action in the case upon trial was the identical cause of action set up in the first suit and adjudicated by the final judgment therein. It is the contention of counsel for the plaintiff in error that not only were the negligent acts identically the same, but that the causes of action were also identically the same, and that, this being so, the prosecuting of the deceased woman's cause by her administrator in the revived action, and the final judgment and satisfaction thereof, must have precisely the same legal effect as though Mrs. Baird had lived and had herself prosecuted her action to final judgment, because the administrator, being her personal representative, must be held to have succeeded to all rights which she had, and to stand in all respects regarding that action as she did before suit had she herself recovered judgment in the case. Nor, say the learned counsel, could the administrator, by disclaimer, or by any attempt to waive his right to recover any item of damages which he was entitled to recover in that action, limit the effect of the final

judgment as a bar to a second action, the causes of action being, as before stated, identically the same. So that the disclaimer by the administrator before trial of all claims for damages made by the deceased in her petition except for pain and suffering endured by her from the time of the accident until her death cannot have the effect of permitting any omitted grounds of damage to be tried in another action, for a party must unite all his claims for damage arising from the same transaction in one suit against the party, and cannot split them up, and try some in one case and others in a subsequent case. And this view was sustained by the court of common pleas in its holding in sustaining the demurrer to the reply and rendering judgment against the plaintiff.

It is, however, the contention of defendant in error that Alice M. Baird had a commonlaw cause of action existing at the time of her decease, which by the statute survived and might be prosecuted as it was prosecuted after revivor by her administrator to recover such damages, and such only, as she herself had sustained by reason of the injury for the benefit only of her estate, while the second action, although by the same administrator, was not in any sense for the injury she had sustained, not for pain or suffering, not for the benefit of her estate, but solely and only for the benefit of her next of kin, whose loss was caused by her death, and whose damages were to be measured by the pecuniary loss which they had sustained by reason of such death. And this contention was sustained by the circuit court in its judgment of reversal. Which of these contentions is the law of the case is the question presented to this court. By the rules of the common law the action pending at the time of Mrs. Baird's death, and her cause of action, would have abated by reason of her death, but the provisions of sections 4975, 5144, Rev. St. 1906, changed the common-law rule in those respects. Those sections are as follows:

"Sec. 4975. In addition to the causes of action which survive at common law, causes of action for mesne profits, or for injuries to the person or property, or for deceit or fraud, shall also survive; and the action may be brought notwithstanding the death of the person entitled or liable to the same."

"Sec. 5144. Except as otherwise provided, no action or proceeding pending in any court shall abate by the death of either or both of the parties thereto, except an action for libel, slander, malicious prosecution, for a nuisance, or against a justice of the peace for misconduct in office, which shall abate by the death of either party."

The right of the administrator, therefore, to recover in the revived action, rested upon the common-law right of action inhering in the injured person, and the preservation of that right in the administrator by virtue of the sections above quoted. The right to

maintain the action brought by the administrator in the interest of the next of kin rests upon sections 6134, 6135, Rev. St. 1906, the pertinent parts of which are as follows:

"Sec. 6134. Whenever the death of a person shall be caused by 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 in respect thereof, then and in every such case the corporation which, or the person who would have been liable if death had not ensued, or the administrator or executor of the estate of such person, as such administrator or executor, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to murder in the first or second degree, or manslaughter; and when the action is against such administrator or executor the damages recovered shall be a valid claim against the estate of such deceased person."

"Sec. 6135. Every such action shall be for the exclusive benefit of the wife, or husband, and children, or if there be neither of them, then of the parents and next of kin of the person whose death shall be so caused; and it shall be brought in the name of the personal representative of the deceased person; and in every action the jury may give such damages, not exceeding in any case ten thousand dollars, as they may think proportioned to the pecuniary injury resulting from such death, to the persons respectively for whose benefit such action shall be brought. Every such action shall be commenced within two years after the death of such deceased person; the amount received by such personal representative, whether by settlement or otherwise, shall be apportioned among the beneficiaries, unless adjusted between themselves, by the court making the appointment in such manner as shall be fair and equitable, having reference to the age and condition of such beneficiaries and the laws of descent and distribution of personal estates, left by persons dying intestate."

* *

The question in our case, therefore, centers around the construction to be placed upon and the effect to be given to the foregoing sections of the statute. Did the lawmakers, by this legislation, intend to preserve from abatement the right of the administrator to recover damages for the benefit of the estate where the party injured died from the effect of the wrongful act and as a consequence of it, and also to create a new and independent right of action to be enforced by the administrator for the benefit of the next of kin with the right to recover damages for their pecuniary loss sustained by the decease of the injured person? It is the insistence of counsel that such was not the intention. The sections quoted, it is urged, do not at least in language undertake to preserve from abatement causes

of action for injuries to the person where the injured person dies directly in consequence of the injuries inflicted, and, when it is remembered that in the same act provision is made for a right of recovery for the benefit of those named in section 6135, it becomes apparent that the General Assembly only intended to preserve causes of action where the injured person died from a cause other than that of the injuries inflicted. If the intention had been otherwise, the addition of a very few words would have made that intention clear. It results from this that, taking the sections all together, the real purpose was to provide that, where a party is injured by such wrongful act and dies directly in consequence thereof, his cause of action abates, and that eo instanti a cause of action arises and vests in the persons named in the statute to be prosecuted by the administrator for their sole benefit; and, if the injured party has commenced an action upon his cause of action and pending that dies in consequence of his injuries, his action abates, and, if the injured party dies from a cause other than his injury, his cause of action survives, and may be prosecuted by his administrator, or, if he has commenced an action upon his cause of action and dies pending the action from a cause other than his injury, his action may be revived in the name of and be prosecuted to final judgment by his administrator, and that, if he dies and his administrator commences and prosecutes to final judgment an action upon his cause of action, and receives payment of such judgment, or if he dies pending an action which he has brought against the wrongdoer, and the action is revived by order of the court in the name of the administrator and prosecuted to final judgment which is fully paid, then and in that event, the record of such action is conclusive upon the administrator in an action brought by him against the wrongdoer under favor of sections 6134, 6135, Rev. St. 1906, upon all questions necessarily involved in that action, and, among others, upon the question that he, the decedent, did not die in consequence of the wrongful act, neglect, or default of the wrongdoer.

These propositions are urged by an ingenious and persuasive argument, and a number of authorities are called to our attention which, to a greater or less extent, tend to support the claims of counsel, some of which will be here referred to. It is presumed that in the main the statutes involved giving a right of action for the benefit of the next of kin are, similar to the statutes of this state. Legg, Adm'r, v. Britton, 64 Vt. 652, 24 Atl. 1016, was an action for the benefit of the widow and next of kin for the wrongful act of defendant resulting in the death of plaintiff's intestate. The defendant pleaded that the intestate in his lifetime began suit for the same neglect and deceased while the suit was pending, and that the administrator prosecuted the same to judgment which was paid. The plaintiff replied that the dam

ages recovered and paid in that suit were for the injuries done the intestate during his lifetime, and did not include the damages occasioned by his widow and next of kin by his death. The court sustained a demurrurer to this reply, and held such judgment a bar to a second suit, although the damages awarded in the first suit were solely for the injuries to the deceased person in his lifetime. In Littlewood, Adm'x, v. Mayor, etc., 89 N. Y. 24, 42 Am. Rep. 271, it is held that when one injured by the wrongful act of another brings suit and recovers damages, in case death subsequently results from the injury, his personal representative cannot maintain an action; the object of the statute being not to impose a double liability, but simply to give a right of action where a party, having a good cause of action, was prevented by death resulting from the injury from enforcing his right or omitted in his lifetime so to do. In Lubrano, Adm'r, v. Atlantic Mills, 19 R. I. 129, 32 Atl. 205, 34 L. R. A. 797, it is held that the actions for damages to the person which survive are such only as are for injuries not resulting in death, and in cases where death results from the injury the only remedy is an action for damages for such injuries as might have been maintained at common law had death not ensued. In Hill v. Pennsylvania Ry. Co., 178 Pa. 223, 35 Atl. 997, 35 L. R. A. 196, 56 Am. St. Rep. 754, it is held that under the statutes of Pennsylvania a widow has no independent right of action for the death of her husband caused by the negligence of another which the husband could not release in his lifetime after the injury. In Holton v. Daly, Adm'x, 106 Ill. 131, it is held that, under the statute of Illinois of 1853, which gives an action to the legal representative of a deceased person to recover damages in case the death of the intestate was caused by the wrongful act of another, the cause of action is the wrongful act causing the death, and not merely the death itself. In such case the declaration must aver and the proof show a wrongful act causing the death under such circumstances as would entitle him to maintain an action if death had not ensued. No damages can be allowed for the pain and suffering the deceased underwent, and his inability to attend to his affairs and for medical attendance and nursing, but only such as arise from pecuniary loss to the widow and next of kin. An action brought by the party injured, where injury results in his subsequent death before judgment, does not survive to his personal representative, but will survive if his death is from some other and different cause. In Martin, Ex'r, v. Railway Co., 58 Kan. 475, 49 Pac. 605, it is held that for an injury resulting in death an action can be maintained only for the next of kin. If death results from the injury, an action cannot be maintained for the benefit of the estate; but, where the injured person dies from other causes, an ac

tion for personal injury survives to the personal representative.

The foregoing conclusions of counsel seem reasonable deductions, providing it is assumed that the legislation of this state has not given two distinct grounds of action where death results from the injuries. But that is the very question involved in this case. In support of the proposition that two rights of action are given, even though death results from the injuries, a number of authorities are called to our attention by the learned counsel for defendant in error, some of which will be here noticed. It is conceded that our death statute, so called (sections 6134-6135), is a substantial reproduction of the English statute known as "Lord Campbell's Act." That act has received construction by a number of adjudications by the courts of that country. Leggott, Adm'r, v. G. N. Ry. Co., 1 Q: B. Div. 599, was an action to recover for negligence on account of inability to attend to business, loss of time, and expense incident to the injuries. Defense that after the death plaintiff as L.'s administrator, for the benefit of the wife and children, sued defendant in respect of the injury caused to them by his death, and recovered. Held, that the second action was not barred by the judgment; that, although the administrator nominally is the plaintiff, yet is not suing in the two actions in the same right, the present one being for the benefit of the estate of the deceased, while the former action was under the statute and for the benefit of the persons therein named. In Bradshaw v. L. & Y. Ry. Co., 10 L. R. C. P. 189, where a passenger was injured by accident and after an interval died in consequence, it is held that an action might be maintained for damage to personal estate arising from loss in inability to attend to business, medical expenses, etc.; that the action is for breach of contract accruing in his lifetime, but which ultimately caused his death, and does not come under Lord Campbell's act, the intention of that act being to give the personal representative the right to recover as trustee for the benefit of the children or other relatives for loss by reason of the injured person's death, and not to affect any existing right belonging to the personal estate in general. In Robinson v. C. P. Ry. Co. (1892) A. C. 481, the House of Lords held that the action authorized by Lord Campbell's act is a different action from that which might have been maintained by the deceased if he had survived, and is a new action given by the statute. Without citing further cases, it may be safely assumed that the settled law of England to-day is in consonance with these adjudications. Coming now to adjudications in our own country, we find many which in substance are of like import. In Whitford v. P. Ry. Co., 23 N. Y. 465, it is held that the statutes are not simply remedial, but create a new cause of action in favor of the personal representative

which is wholly distinct from and not a revivor of the cause of action which, if he had survived, he would have for his bodily injury. In V. & M. R. Co. v. Phillips, Adm'r, 64 Miss. 693, 2 South. 537, it is held that an administrator may maintain any personal action which the decedent might have prosecuted, including damages for an injury inflicted by a railroad company which resulted in the death of such decedent, and such right of action is distinct from and independent of the right given by statute to the next of kin to recover for the death of the person caused by the wrong of another. In Putman v. S. P. Co., 21 Or. 230, 27 Pac. 1033, it is held that a mother during the continuance of the relation of parent and child may maintain an action in her own right for damages caus ed by the death of her child, while the personal representative of the deceased is given a right to recover for any injury which the estate may have sustained. In Davis v. Railway, 53 Ark. 117, 13 S. W. 801, 7 L. R. A. 283, it is held that under the statute of Arkansas which provides that all actions for wrongs done to the person of another may, after his death, be brought by his personal representative for the benefit of his estate, such action may be prosecuted at the same time with one for the benefit of the widow and next of kin for pecuniary loss sustained by the death, and a recovery in one action will not be a bar to a recovery in the other. In Belding v. B. H. & F. P. R. Co., 3 S. D. 369, 53 N. W. 750, it is held that the statute of South Dakota, which provides that, if the life of any person shall be lost, the personal representative may institute suit to recover damages in the same manner that the person might have done for any injury when death did not ensue, is a survival statute, and the only damages recoverable are such as the estate has sustained but not for the loss of life. The section giving the right to the representative to recover for the loss of the life creates a new cause of action and is for the exclusive benefit of the persons named in the statute. In Hedrick v. I. R. & N. Co., 4 Wash. 400, 30 Pac. 714, it is held that under the statute of Washington a father may maintain an action for the death of his child, although the administrator of the child's estate may have theretofore recovered judgment against the same defendant for causing the child's death by wrongful act or neglect. In Bowes v. Boston, 155 Mass. 344, 29 N. E. 633, 15 L. R. A. 365, it is held that an administrator of a person injured by defect in the highway, who after an interval dies of his injuries, may maintain an action to recover for the injuries for the benefit of the estate, and at the same time a second action for the loss of life for the benefit of the widow and children or next of kin. In Brown, Adm'r, v. C. & W. Ry. Co., 102 Wis. 137, 77 N. W. 748, 78 N. W. 771, 44 L. R. A. 579, it is held that the liability created by the statutes of Wisconsin in the case of the