allowed to residents of the state. 45 But the Kansas Supreme Court holds to the contrary.46

An alien mother and sister are entitled to compensation as total dependents irrespective of the fact that an aunt and a sister occasionally made them presents of little value.47

The New Jersey Act excludes nonresident aliens from the benefit of the act, and this exclusion does not entitle them to a commonlaw action for wrongful death.48 But where there is no special provision in the act excluding nonresident aliens they are entitled to compensation.49 And the personal representative of a deceased resident in the province can recover compensation.50

A foreigner, who is a resident of a nation with which the United States has a treaty guaranteeing the same privileges and protection to aliens as to natives, does not have a right of action for the death of a workman, where the law of a state gives such right of action to native relatives and expressly denies it to aliens.51

Under Sec. 39, C. 15 P. Code 1918, as amended by Sec. 39, C. 131, Acts 1919, (W Va.) the executor or administrator of the estate of a deceased nonresident alien beneficiary may be officially represented in the collection of such accrued and unpaid installments, by the consular officer of the country of which such beneficiary was a citizen or subject.52

45. Zancanelli v. Central Coal etc. Co., 25 Wyo. 511, 173 Pac. 981, 2 W. C. L. J. 715. See Utah Act 1921 Am. § 3140 (8).

46.

47.

Vietti v. Geo. K. Mackie Fuel Co.,

Kan. -, (1921), 197 Pac. 881. Petrozino v. American Mutual Liab. Co., 219 Mass. 498, 107 N. E.

370, 9 N. C. C. A. 594.

48. Ronca v. De Grave, 38 N. J. L. J. 56, 9 N. C. C. A. 594; Gregutis v. Waclark Wire Wks., 86 N. J. L. 610, 92 Atl. 354, Constanzo v. Hanover Brick Co., 37 N. J. L. J. 52. See S. Dak. Am. 1921, § 9458 (8).

49. Varesick v. British Columbia Copper Co., (1906), 12 B. C. 286, 1 B.

W. C. C. 446; In re Jorgensen, 2nd A. R. U. S. C. C. 75.

50. Krzus v. Crows Nest Pass Coal Co., 6 B. W. C. C. 271, (1912), A. C. 580, 107 L. T. 77, 28 T. L. Rep. 488, 81 L. J. P. C. 227.

51. De Biasi v. Nomandy Water Co., 228 Fed. 234.

52.

Poccardi v. Ott, W. Va.

(1920), 104 S. E. 54, 6 W. C. L. J.

721.

§ 376. Illegal and Divorced Wives.-Where a husband and wife were living apart after an interlocutory judgment of divorce for the wife, which contained no provision for her support, it was held that they were living apart by agreement not providing for the wife's support, so that, under section 175, the husband was not personally liable for her support, and she was not entitled to the presumption of total dependency created by the California Workmen's Compensation Act, Sec. 14, Sub'd. A. (1).

53

A wife who is not living with her husband, but who is receiving from him money paid pursuant to a decree awarding her separate maintenance, is within section 14, of the California Act, declaring that a wife shall be conclusively presumed dependent for support upon a husband with whom she was living or for whose support such husband was legally liable.54

In some states a common-law marriage is sufficient to support an award to one claiming dependency as the wife of deceased.55 But the claim of a woman as dependent cannot be allowed on a mere showing that she was living with deceased as his wife, there being no legal marriage;56 nor upon proof that she had sustained adulterous relations with the deceased.57

A woman who in good faith lived with an employee as his lawful wife, believing that their marriage license in itself constituted marriage, is entitled to compensation under the California Act,

53. London Guarantee & Accident Co., Ltd., v. Indus. Acc. Comm.,Cal., (1919), 184 Pac. Rep. 864, 5 W. C. L. J. 20.

54. Continental Casualty Co. v. Pillsbury,-Cal.-, (1919), 184 Pac. 658, 5 W. C. L. J. 6.

55. Voshall v. Kelley Island L. & T. Co., 13 Ohio . R. 278, 60 Ohio L. Bul. 361, 13, N. C. C. A. 199; In re Morris, (Ohio Ind. Comm.), 13 N. C. C. A. 199; Meehan v. Edward Valve & Mfg. Co., 64 Ind. App., 117 N. E. 265, 16 N. C. C. A. 86; Brown v. Long Mfg. Co.,—Mich.—, (1921), 182 N. W. 124.

56. Scott v. Independent Ice Co., 135 Md. 345, 5 W. C. L. J. 702, 109 Atl. 117.

57. Illinois Steel Co. v. Industrial Comm., 290 Ill. 594, 125 N. E. 252, 5 W. C. L. J. 199; Meehan v. Edward Valve & Mfg. Co., 64 Ind. App. -, 117 N. E. 265, 16 N. C. C. A. 85.

1917, Sec. 14, notwithstanding a statute requiring solemnization of marriage.58

It is held in other jurisdictions that an honest but mistaken belief that the claimant was married to the deceased employee does not constitute her a dependent.50

A divorced wife who was forbidden by the decree to marry within a year, cannot constitute herself the lawful wife of a third party within the forbidden time, within the meaning of the compensation act. Such marriage is void from its inception, and does not even constitute a common law marriage."

A divorced wife, who is supporting herself by her own efforts, cannot be said to be a dependent, for dependency can not be found where there was simply a legal obligation on the part of the husband to support his wife. There must be a reasonable probability that such obligation will be fulfilled.61

§ 377. Desertion and Non-Support.-To constitute desertion within the Iowa Code, Supp. 1913, Sec. 2477 M16, (c) (1). which creates a conclusive presumption that the surviving spouse is wholly dependent upon the deceased employee, unless she willfully deserted him, there must be cessation of the marriage relation, intent to desert, and absence of consent or misconduct upon the party alleged to have been deserted. Therefore, where a husband is unable to support his wife, her separation, with his consent, to earn wages, does not constitute desertion."2

58.

Femescal Rock Co. v. Indus. Acc. Comm.,-Cal.-, (1919), 182 Pac. 447, 4 W. C. L. J. 469.

59. In re Jones, (Ohio Ind. Comm.,), 6 N. C. C. A. 250; Meton v. State Indus. Ins. Department, 104 Wash. 652, 177 Pac. 696, 3 W. C. L. J. 541; Armstrong v. Indus. Comm. of Wis., 161 Wis. 530, 154 N. W. 844, 13 N. C. C. A. 200; Salvador v. Interborough Rapid Transit Co., 1 N. Y. St. Ind. Bull. 10, 5 N. Y. St. Dep. Rep. 438, (1915), 13 N. C. C. A 203. 60. Hall v. Ind. Comm. of Wis., 166 Wis. 364, 162 N. W. 312, 16 N. C. C. A. 77; Williams v. Williams, 46 Wis. 464, 13 N. C. C. A. 202; Lanham v. Lanham, 136 Wis. 360; Armstrong v. Ind. Comm. 161 Wis. 530. 61. Sweet v. Sherwood Ice Co., 40 R. I. 203, 100 Atl. 316, 16 N. C. C. A. 85.

62.

James Black D. G. Co. v. Iowa Indus. Comm.,-Iowa, (1919), 173 N. W. 23, 4 W. C. L. J. 379.

A deserted wife, who, subsequent to the desertion, has been guilty of adultery, is not a dependent of her husband within the meaning of the Maine Act; desertion under the Act having its usual meaning in connection with marital relations.63

A wife who deserts her husband, or has been deserted by her husband, and who does not receive support from him, is not a dependent.64

But where the wife was actually destitute of funds, it was held that she was dependent upon her husband's earnings, even though he had deserted her and did not support her.65

Children deserted by their father, and not supported by him, are not presumed to be dependent.66

Desertion and non-support of chidren by a father for three years, followed by an agreement to contribute from his earnings, with which he was prevented from complying, because of the accident, makes dependency a question of fact for the arbitration committee to decide.67

Where a workman deserts his wife and a minor child, whom he has taken into his family but never adopted, and he does not contribute to their support for several months prior to his death, the minor child is not entitled to prevail in a claim of depend ency.68

§ 378. Marriage or Remarriage of Dependent.-Where there is no provision made in the act to the effect that remarriage of a deceased workmen's dependent widow will terminate further

63. Scott's Case, 117 Me. 436, 104 Atl. 794, 3 W. C. L. J. 49. 64. Batista v. West Jersey & Seashore R. Co., 85 N. J. L. 801, 88 Atl. 954, 4 N. C. C. A. 781; Devlin v. Pelaw-Main, Colliery Co., 5 B. W. C. C. 349, (1912), W. C. R. 225; Lindsay v. M'Glashen & Sons Ltd., 1 B. W. C. C. 85, 6 N. C. C. A. 250; Miller v. Pub. Serv. R. Co., 84 N. J. L. 174, 85 Atl. 1030; Polled v. Great Western Ry. Co., (No. 2), (1912), 5 B. W. C. C. 620 C. A.

65. Sneddon v. Robert Addie & Sons' Collieries, Ltd., 12 Sc. L. T. 229, 6 N. C. C. A. 250.

66. Lee v. Bessie, (1912), W. C. & Ins. R. 57. 6 N. C. C. A. 259. 67. Dobbie v. Egypt & Levant S. S. Co., (1913), W. C. & Ins. Rep. 75, 6 N. C. C. A. 259.

68.

Mahoney v. Gamble Desmond Co., 90 Conn. 255, 96 Atl. 1025.

payments, remarriage will not affect the payment of benefits, and an award is absolute and not conditional."

The ascertainment of dependency is made as of the time of the accident, therefore, in the absence of statutory provisions to the contrary, subsequent intervening events will not deprive the de pendent of compensation. Remarriage after compensation has been awarded, but before termination of payments, does not deprive the party from receiving further payments under the allowance.70

Where the statute does not specifically mention marriage as a condition of terminating payments, the marriage of a dependent sister does not disentitle her to further payments.71

Where the New York State Industrial Commission ordered the employer to pay to the state insurance fund the commuted value. of an award to the widow and children of a deceased employee, and the original award directed payment to the widow during widowhood, and to the children until they arrived at the age of 18 years, the court, in reversing the award, said: "The order appealed from which required the deposit in the state fund by the employer and self insurer of the money to meet the future payments of an award was properly reversed by the appellate division, for the reason that section 27 of the Workmen's Compensation Law (Consol. Laws, c. 67), which requires such deposit, does not apply to an award made to a widow. It does not contemplate and fails to provide for weighing or determining the contingency of the widow's remarriage-which would bring about a cessation of the payments to her." 72

69.

Newton v. Rhode Island Co., R. I.

105 Atl. 363, (1919), 3 W. C. L. J. 527; Wangler Boiler Co. v. Indus. Comm., 287 Ill. 118, 122 N. E. 366. 3 W. C. L. J. 617; Adleman v. Ocean Acc. & Guar. Co., 130, Md. 572, 101 Atl. 529. See Utah Act 1921 Am., § 3140 (5).

70. Bott's Case, 230 Mass. 152, 119 N. E. 755, 16 N. C. C. A. 864; Hanson v. Brann & Stewart Co., 90 N. J. L. 444, 103 Atl. 696, 16 N. C. C. A. 864; The New Jersey's Act has been amended so as to terminate payments in the event of remarriage.

71. Adleman v. Ocean Accident and Guarantee Corp., 130 Md. 572, 101 Atl. 529, 16 N. C. C. A. 865, A 1 W. C. L. J. 738.

72. Adams v. New York & O. W. R. Co., 220 N. Y. 579, 114 N. E. 1046, 16N. C. C. A. 866.