A widow adopted a child subsequent to the death of her husband, and later remarried. Upon remarriage a claim was made on behalf of the child for a share of the compensation awarded to the widow. The court, in denying compensation, said: "The whole purpose of the compensation Act was to make pecuniary provision for those having lawful claims upon the workman, particularly his widow and his children. The petitioner in the case at bar was not the child of the deceased, nor of his widow. She made him her child after the death of the decedent, but that fact cannot bring him within the statute. The statute must be construed as having reference and application to conditions existing at the time of the death of the workman, and not to relationships created by the widow after his death. And though the statute might be construed to include children of the widow by a former marriage, who at the time of his death were living with and dependent upon the workman for support, it cannot well be construed to include children coming into an adopted relationship to the widow after his death." 73 Where a husband instituted proceedings during his lifetime against his employer, his wife, not being a party in interest, would not be affected by the outcome of such proceeding, except that there might be a possible deduction of her claim for payments actually made him.74 § 379. Rights of Dependents Independent of the Right of Deceased and Others.-A dependent's claim to compensation arises upon the death of the workman, and is independent of the claim to compensation by the workman. A settlement by the employer 73. State ex rel. Varchmin v. District Court of Ramsey Co., 133 Minn. 265, 158 N. W. 250, 13 N. C. C. A. 277. 74. Md. Curtis v. Slater Const. Co., 202 Mich. 673, 168 N. W. 958, 2 W.C. L. J. 909; Giggndelle v. Piedmont and Georges Creek Coal Co., App.-, (1920), 111 Atl. 135, 6 W. C. L. J. 535. 75. Nesland v. Eddy, 131 Minn. 62, 154 N. W. 661. This case finds support in Anderson v. Fielding, 92 Minn. 42, 99 N. W. 357, 104 Am. St. Rep. 665; Michigan Central R. Co. v. Vreeland, 227 U. S. 59, 33 Sup. Ct. 192, 57 L. Ed. 417, Ann. Cas. 1914C, 176; American R. Co. v. Didricksen, 227 U. S. 145, 33 Sup. Ct. 224, 57 L. Ed. 456. 76 with the workman does not bar the dependent's right to compensation. Nor does a release by the workman bar dependents right to compensation." A release by the widow will not bar the claim of the personal representative for the benefit of minor children.78 Financial benefits accruing to dependents upon the death of a workman will not affect the right to compensation.". The fact that an employee received compensation for a brief period before his death does not relieve the insurer of the statutory requirement of the New York Act to "pay to the state treasurer for every case of injury causing death in which there are no persons entitled to compensation the sum of $100.00." In case of death the decedent would not be a person entitled to compensation.80 In holding that a mother could institute proceedings to recover compensation, despite the fact that the widow elected to sue a third person, and while such suit was pending, the court said: "If in the instant case the widow succeeds in her action against the third party, her success will inure to the benefit of the insurer so far as she and those represented by her action against the third party are concerned. But, whether she succeeds or fails, the result will be the same to the insurer, so far as the dependent mother is concerned. Within the limitations of said section 16, subdivision 4, the liability of the insurer to the mother is entirely independent of the claim of the widow, and will remain the same independently of the result of the action instituted by her against 76. King v. Viscoloid Co., 219 Mass. 420, 106 N. E. 988; Williams v. Vauxhall Colliery Co. Ltd., (1908), 9 W. C. C. 120 C. A.; Howell v. Bradford & Co., (1911), 4 B. W. C. C. 203 C. A. 77. In re Cripp, 216 Mass. 586, 104 N. E. 565 Ann. Cas. 1915B, 828. 78. West Jersey Trust Co. v. Phil. & Read. R. R. Co., 28 N. J. L. 102, 95 Atl. 753; Satterfield v. Wahlquist, Penn. 111 Atl. 253, 6 W. C. L. J. 579. 79. State ex rel. Crookston Lbr. Co. v. District Ct., 131 Minn. 27, 154 N. W. 509; Pryce v. Penrikyber Nav. Colliery Co., (1902), 4 W. C. C. 115, C. A. 80. Stempfler v. J. Rheinfrank & Co., 190 App. Div. 163, 179 N. Y. S. 659, (1919), 5 W. C. L. J. 573; Milwaukee Coke & Gas. Co. v. Indus. Comm., 160 Wis. 247, 151 N. W. 245, 9 N. C. C. A. 597; In re Nicholas, 104 N. E. 566, 217-Mass. 3, 4 N. C. C. A. 546. the third party. The amount of the payment to the dependent mother can be fixed definitely and accurately, and in no respect depends on either the fact or the amount of the recovery in the action of the widow against the third party. 9781 Money paid to an employee under a voluntary agreement between the employee and employer, cannot be deducted from a death benefit, for such payment does not come within the scope of the statute allowing advancements to be deducted.82 § 380. Death of Beneficiaries or of an Employee Before the Period for Which an Award Has Been Made Has Elapsed.— Some acts expressly provide for termination of payments on the death of the beneficiary or upon contingencies, such as remarriage of a dependent widow or widower or cessation of dependency, other acts are so construed.83 A few states provide that upon death or remarriage of a dependent widow or widower during the term of benefit payments, subsequent payments shall go to other dependents, if any, while other acts are construed or expressly provide that upon the death of dependents the right to compensation which is a vested right passes to the executor or administrator.85 But in the absence of some provision vesting in some 84 81. In re Cahill, 159 N. Y. Supp. 1060, 16 N. C. C. A. 181. 82. Jackson v. Berlin Const. Co., 93 Conn. 155, 105 Atl. 326, 3 W.C.L.J. 224. 83. In re Murphy, 224 Mass. 592, 113 N. E. 283, 13 N. C. C. A. 717; Ledford v. Caspar Lbr. Co., 2 Cal. I. A. C. 679, 13 N. C. C. A. 723; Corcoran v. Farrel Fdry. Co., 1 Conn. C. D. 42, 13 N. C. C. A. 721; Lahoma Oil Co. v. Indus. Comm., Okla. -, 175 Pac. 836. The Illinois act as amended in 1919 provides that compensation is extinguished by death if there are no dependents. Ill. App. 448, 13 N. C. C, A. 84. Matecny v. Vierling Steel Wks., 187 715; Hughes v. L. P. Degen Belting Co., 2 A. 729; Judson v. Andrews & Peck Co., 1 Conn. C. D. 54, 13 N. C. C. A. 731; In re Bartoni, 225 Mass. 349, 114 N. E. 663; McNicols Case, 215 Mass. 497. 85. United Collieries Ltd. v. Simpson or Hendry, (1909), A. C. 383, 6 N. C. C. A. 287; Darlington v. Roscoe & Sons, (1907), 1 K. B. 219, 9 W. C. C. 1; State ex rel. Munding v. Indus. Comm. of Ohio, 92 Ohio St. 434, 111 N. E. 299, 13 N. C. C. A. 713; Swift & Co., v. Indus. Comm, survivor the right to compensation payments, the general rule is that the death terminates the compensation.86 And the personal representative is entitled only to the amount of compensation lue at the time of the death of the injured employee.87 Where a widow, who was wholly dependent upon and the sole dependent of the deceased, died before compensation was made, and the administrator of deceased's estate sued for compensation, the court held "The action was prosecuted by the right party," and that "the right to full amount of compensation allowed by suddivision 1, of sec. 5905, of the general statutes of Kansas, 1915, vested on the death of the workman, and was recoverable, notwithstanding the provision of subdivision 4 relating to discontinuance of compensation on marriage of a dependent and on arrival of a dependent at the age of independency." ss An award made payable to the deceased's widow and in case of her death to the dependent children was held proper in a case where the children were equally dependent with the widow.89 In a Massachusetts case the court said that the decree of award to the widow of the deceased servant should contain a clause stating 288 III. 132, 123 N. E. 267, 4 W. C. L. J. 163; Wangler Boiler & Sheet Metal Works v. Indus. Comm., 287 II. 118, 122 N. E. 366; Hansen v. Braun & Stewart Co., 90 N. J. L. 444, 103 Atl. 696; Friedman Mfg. Co. v. Indus. Comm., 284 Ill. 554, 120 N. E. 460; In re Towle, Op. Sol. Dep. C. & L. 565. 86. Ray v. Industrial Ins. Comm., Wash. 168 Pac. 1121; Wozneak v. Buffalo Gas Co., 175 App. Div. 268, 161 N. Y. Supp. 675; Lahoma Oil Co. v. Indus. Comm. of Okla., - Okla. Fidelity Guaranty Co. v. Salser, Tex. Civ. App. 104 N. E. 566; 175 Pac. 836; U. S. 224, S. W. 557, In re Bartoni, 114 N. 113 N. E. 283; In re E. 663, 225 Mass. 349; In re Murphy, 105, Atl. 326; Poccardi v. Ott, 88. Smith v. Kaw Boiler Works, 104 Kan. 591, 180 Pac. 259, 4 W. C. L. J. 87. 89. Zoldatz v. Detroit Auto Specialty Co., N. W. 549, 4 W. C. L. J. 259. Mich. (1919), 172 in express terms that in case of death of the dependent before the expiration of the period of payment the weekly payments are to cease, but the payments do cease regardless of the omission of such clause.90 Where a deceased employee's dependents were two minor chil dren, and one of the children died after the father's death but before an award was made, and an award by the industrial commission, ordering the share of the deceased child to be paid to the administrator of the deceased employee was upheld because the court held that an insurer cannot litigate by appeal the proportions of the division of a payment among those claiming to be dependent upon the deceased employee, when the dependents are satisfied, and do not appeal and the insurer cannot, by any possibility, affect its pecuniary responsibility."1 Subsequent insanity does not deprive an employee of compensation due him.92 Under the Colorado statute distributing lapsed awards and a subsection of the statute which limits the amount of an award to nonresidents to one third of the amount allowed to resident dependents, but not to exceed $1000, an award of $2,500 for and employee's death was apportioned so that a dependent son, a resident, was awarded one third, and the widow and daughter, nonresident dependents, were awarded jointly one third of the remainder. Upon the lasping of the son's share at his death, and the widow's share upon her remarriage the daughter was entitled to an award of $1000 less the original award to her, and she was not limited to one third of the unpaid sum.93 90. In re Derinza, 229 Mass. 435, 118 N. E. 942, 1 W. C. L. J. 795, 16 N. C. C. A. 87; In re Bartoni, 225 Mass. 349, L. R. A. 1917E, 765, 114 N. E. 663, 16 N. C. C. A. 88. 91. In re Janes, 217 Mass. 192, 4 N. C. C. A. 552, 13 N. C. C. A. 720. 116 N. E. 496, 15 N. C. C. A. 345; In 92. In re Walsh, Mass. -9 re Colon, M. Linton, 3rd A. R. U. S. C. C. 131; Ward v. Heth Bros., 93. Indus. Comm. of Colo. v. Colo. Fuel & Iron Co. 195 Pac. 114. |