Where a father has abandoned his wife and children, the mother obtains a divorce and, the custody of the children has been given to a person other than the father, it cannot be said that the children are living with the father within the conclusive statutory presumption that children living with the parent are dependent upon such parent. The legal obligation of the parent to support the child is insufficient to bring the child within the statutory presumption; and to establish dependency of such children, actual support must be shown.21

Under a statute making illegitimate children presumptively dependent when they are part of the decedent's household at the time of his death, an illegitimate posthumous child is considered a part of decedent's household at the time of his death.22

Where the father of the unborn child of an unmarried woman publicly expressed his intention to marry the woman and four days prior to the marriage, was killed, it was held that the child was entitled to an award for total dependency.23

A posthumous child has been held to be dependent upon its father, where the father had been contributing to the mother's support, although at the time of the accident he was not so contributing.24

A daughter 16 years old, living apart from her father and earning $45.00 a month, is a dependent, where the father was actually supporting her.25

Under the English Act, children living apart from their father and not receiving their support from him, are not considered dependents.20

21. Northwestern Iron Co. v. Indus. Comm., 154 Wis. 97, 142 N. W. 271, 3 N. C. C. A. 670.

22. Klimchak v. Ingersoll Rand Co., 39 N. J. L. J. 275, 13 N. C. C. A. 274, Williams v. Ocean Coal Co., Ltd., (1907), 9 W. C. C. 44, 6 N. C. C. A. 260.

23. Harris v. Powell Duffeyn Steam Coal Co., Ltd., 9 B. W. C. C. 93, 13 N. C. C. A. 274.

24. Queen v. Clark, (1906), 2 I. R. 135; 4 Ir. L. T. R. 19, 6 N. C. C. A. 260.

25. In re Hughes, Ohio I. C., (1914), 6 N. C. C. A. 256.

26. Pollad v. Great Northern Ry. Co., (1912), W. C. & Ins. Rep. 379, 6 N. C. C. A. 260.

W. C.-61

Posthumous illegitimate children have been held entitled to compensation as dependents, were the putative father recogniz ed the paternity and arranged to marry the mother.27

A child by a former marriage is entitled to an equal division of an award with the surviving widow.28 But where after the death of the step-father the child goes back to live with his natural father who had been divorced, and the father assumes the obligation of caring for him, the dependency ceases and he becomes a dependent of his natural father, the same rule applying in cases of divores where custody had been given to the mother.29

Dependent step-children, who have been supported by the deceased, are included within the word "children" in the New Jersey Act.30

Under the Kentucky Code, Supp. 1913, Sec. 2477 m. 16, providing that a child under 16 years of age is conclusively presumed to be wholly dependent upon a deceased employee, and that stepparents shall be regarded in the act as parents, the effect of the latter provision is to substitute a step-parent for an actual parent so that a child whose natural father was killed, but who at the time was living with her stepfather, is not entitled to share in the compensation.31

The Supreme Court of Kansas, in construing the Kansas Act, said: "Dependents" means such members of the Workman's family as were wholly or in part dependent upon the workman at the time of the accident. And 'members of a family' for the purpose of this Act means only widow or husband, as the ease may be, and children; or if no widow, husband or children, then

27. Orell Colliery Co. v. Schofield, (1909), 2 B. W. C. C. 294, 6 N. C. C. A. 261; Secor v. Security Const. Co., 1 Cal. I. A. C. Bull, 6 N. C. C. A. 261; Lloyd v. Powell Duffryn Steam Coal Co., Ltd., (1914), A. C. 733, 7 B. W. C. C. 330, 9 N. C. C. A. 588.

parents and grandparents; or if no parents or grandparents, then grand-children; or if no grandchildren, then brothers, and sisters. In the meaning of this section parents include stepparents, children include step-children and grand-children include step-grandchildren, and brothers and sisters include step-brothers and step-sisters, and children and parents include that relation by legal adoption.

32

Posthumous children in some jurisdictions have been held not to be dependents of deceased workmen.33

Where an employee's minor son enlisted in the marines and his four-year term expired after he reached his maturity he voluntarily emancipated himself with his father's consent. There was no legal obligation on the father to support him and he was therefore not entitled to compensation as dependent on the death of the father.34

Divorce does not effect the father's liability for support of a child in the absence of proof of the son's ability to support himself and of his emancipation, even though the son attained his majority pending the proceedings.3

35

Where an employee was living in adulterous relations with an undivorced wife of another and voluntarily supporting a child of hers by her undivorced husband, it was held that the mothers wrong could not be implied to the child and therefore the child was entitled to compensation as his dependent.36.

32. Smith v. National Sash & Door Co., 96 Kan. 816, 153 Pac. 533. 33. Villar v. Gilbey, (1907), A. C. 139; William v. Ocean Coal Co., (1907), 97 L. T. 150, 9 W. C. C. 44; Day v. Markham, (1904), 6 W. C. C. 115; Secor v. Security Const. Co., 1 Cal. Ind. A. C. (Part II) 93.

34. Iroquois Iron Co. v. Indus. Comm. Ill., Ill., 128 N. E. 289, 6 W. C. L. J. 646 Note; For cases of children conclusively presumed to be dependent upon deceased, see "Presumption Relating to Dependency." Section 368 ante.

35. Panther Creek Mines v. Indus. Comm., Ill. (1921), 130 N. E. 321; Auburn & Alton Coal Co. v. Indus. Comm..-Ill., (1921), 130 N. E. 322.

36. Moore Shipbuilding Corp. v. Indus. Comm.,-Cal-, (1921), 196 Pac. 257.

§ 375. Alien Dependents, and Constitutionality of Provision Pertaining to Aliens.-The New York Act provides for payment to aliens not residents of the United States, the same amourt provided for residents, except that dependents in any foreign country shall be limited to surviving wife and child or children or, in the absence of those, to father or mother or grandparents, whom the employee has supported for a year prior to the accident. Under the provisions of this Act, an award of 25% to each parent was an error, and should be modified by striking out the award in favor of the mother, as the award to both parents cannot exceed 25%.37

Where alien non resident parents or wife have not been heard of or from within three or four years, there must be actual proof that they are alive. The rule that one is not presumed to be dead. until after he has not been heard of for seven years cannot be invoked to establish the presumptive fact that the wife or parents are living.38

Alien dependents of a deceased servant, subjects of a friendly foreign nation are not excluded from the benefits of the Workmen's Compensation Acts. But the question of dependency is one of fact, and where a wife owns a lot with a good house upon it for the family to live in, it cannot be said that she is totally dependent upon her husband's wages."

39

Upon proof of dependency an alien wife is entitled to compensation on the death of her husband, provided she relied upon him

37. Skarpeletzos v. Counes & Raptis Corp., 228 N. Y. 46, 126 N. E. 268, 5 W. C. L. J. 720; Casella v. McCormick, 180 N. Y. App. Div. 94, 167 N. Y. S. 564, 16 N. C. C. A. 219; Intini et. ux. v. Stittville Canning Co., 181 N. Y. S. 890, 191 App. Div. 933, (1920), 6 W. C. L. J. 83.

38. Keystone Steel & Wire Co. v. Indus. Comm., 289 Ill. 587, 124 N. E. 542, 5 W. C. L. J. 40.

39. In re McDonald, 229 Mass. 454, 118 N. E. 949, 1 W. C. L. J. 808, 16 N. C. C. A. 87, 210; In re Derinza, 229 Mass. 435, 118 N. E. 942, 1. W. C L. J. 795, 16 N. C. C. A. 87, 210; In re Mooradjian, 229 Mass. 521, 118 N. E. 951, 1 W. C. L. J. 813, 16 N. C. C. A. 215, 920; Victor Chemical Works v. Indus. Bd., 274 III. 11, 113 N. E., 173; Vujic v. Youngstown Sheet & Tube Co., 220 Fed. 390. (D. C.); Eretza v. Ft. Montgomery Iron Works, (1920), 184 N. Y. S. 789, 7 W. C. L. J. 98; In re Pagnoniee, Mass., 118 N. E. 948, 1 W. C. L. J. 806.

for support, but this is a fact to be proved, and no presumption exists in favor of an alien wife living apart from her husband.40

Where deceased left a wife in a foreign country and did not contribute to her support, a mere expression of an intention to bring his family over when he had earned enough money, will not suffice to constitute her a dependent."1

It has been held in Texas that an alien is not precluded from the protection of the Texas Act merely because the foreign country did not accord like privileges to Americans.42

Where an employee had been living in this country for eight years, during which time his wife had been residing in a foreign country and there was no evidence to show that she was living apart from him for justifiable cause or that he had deserted her, she was held not to be entitled to compensation under the Massachusetts Act.42

Even though the act provides for payment to aliens and nonresident dependents, it does not violate any constitutional provision; for "if it may reasonably be thought that the best interests of the state, of the employers of labor, and of those employed, as well as the public generally, are promoted by imposing upon the industry or the public the burden of industrial accident, the residence and citizenship of dependents, are factors entirely foreign to the discussion.” 44

An act is not unconstitutional because it provides that nonresident alien dependents receive only 33 per cent of the amount

40. Kalcic v. Newport Mining Co., 197 Mich. 364, 163 N. W. 962, 16 N. C. C. A. 211; In re Gorski, 227 Mass. 456, 116 N. E. 811, 16 N. C. C. A. 217.

41.

Ludwig v. American Car & Fdry. Co., 194 Mich. 613, 161 N. W. 835, 16 N. C. C. A. 212.

42. Southwestern Surety Ins. Co. v. Vickstrom, Tex. Civ. App. —, 203 S. W. 389, 16 N. C. C. A. 225.

43. In re Fierro's Case, 223, Mass. 378, 111 N. E. 958, 13 N. C. C. A. 544. 44. Western Indemnity Co. v. Pillsbury, 170 Cal. 686, 151 Pac. 398, 10 N. C. C. A. 1; Greene v. Caldwell, 170 Ky. 571, 12 N. C. C. A. 520, 186 S. W. 648; Commonwealth v. Goldberg, 167 Ky. 96, 180 S. W. 68; Western Metal Supply Co. v. Pillsbury, 172 Cal. 407, 156 Pac. 491.