Where an employee recovered a lump sum judgment and upon his death, before satisfaction, in holding that it might be revived in the name of the administrator, the court said: "The argument against the revivor being allowed in the name of the administratrix is based upon the contention that:

"Under the compensation law, the right to compensation and any judgment for compensation abates upon the death of the employee, and does not survive to his heirs or representatives.

"In support of this contention it is argued that compensation, where death results from an injury to a workman, is allowed only to his dependents, and therefore his heirs as such, or his executor or administrator, have nothing to do with it. That situation, however, is obviously not fully analogous to the one here presented. where a judgment was rendered in favor of the workman. It has been held that a judgment under the Compensation Act providing for periodical payments to an injured workman, although subject to commutation, does not survive the plaintiff's death, Wozneak v. Buffalo Gas Co., 175 App. Div. 268, 161 N. Y. Supp. 675.

"In the case cited the trial court had decided to the contrary, and two of the five appellate judges dissented from the reversal. That decision, however, if accepted as sound, would not control here. In the present case the plaintiff had obtained an absolute personal judgment requiring the immediate payment of a fixed amount. was the legal duty of the defendant to pay it at once, unless a stay should be procured pending an appeal. If payment had been made, the money would have been wholly at the disposal of the plaintiff. If the final result is an affirmance, it will amount to an adjudication that the rights of the parties shall remain as fixed at the time the judgment was rendered. The defendant gains no immunity from the fact of his having taken an appeal which is ultimately determined not to have been well founded.

"The final argument against the right of revivor is that because the judgment is not assignable it does not survive the death of the plaintiff. It is true that, as a rule, causes of action which are not assignable do not survive. 1 C. J. 175, 176. But a judgment based on a nonsurviving cause of action ordinarily does survive (1 C. J. 169), and does so in this state notwithstanding the penden

cy of an appeal (Powers v. Sumbler, 83 Kan. 1, 110 Pac. 97). Moreover, while as a rule causes of action which are not assignable do not survive, this is because of qualities that inhere in the nature of the right. Where the statute for some special purpose, as the protection of a claimant against improvidence, forbids assignment, nonsurvivability does not necessarily result therefrom. The new government war savings certificates are expressly made not transferable, but it will hardly be doubted that the title would pass to the heirs or personal representatives of the owners upon his death. We hold that if the assignment was invalid the revivor was properly made in the name of the administratrix." 94

§ 381. Absence of Dependents.-Under sec. 15, sub'd. 7, of the New York Workmen's Compensation Law, the insurance carrier may pay the state treasurer $100.00 where the injury results in the death of an employee who is without surviving dependents, though the employee himself before death received compensation for a brief period; for in case of death, he would not be a person entitled to compensation.95

The State alone can object to the failure of the court to award $750.00 to the state treasurer, in case of a finding that there were no dependents of the deceased workman, under the Connecticut Act.96

§ 382. Inheriting from Estate of Deceased or Receiving Benefits from Other Sources.-As the question of dependency is to be determined as of the time of the injury or death of deceased, money or other property coming to the claimant from the deceased's estate has no bearing upon the question.97

Kan.

94. Monson v. Battelle, 170 Pac. 801, 1 W. C. L. J. 770. 95. Stempfler v. J. Rheinfrank & Co., 190 App. Div. 163, 179 N. Y. S. 659, (1919), 5 W. C. L. J. 573.

96. Blanton v. Wheeler & Howes Co.. 91 Conn. 226, 99 Atl. 494. 97.

State ex rel. v. District Court of Beltrami County, 131 Minn. 27, 13 N. C. C. A. 555; Pryce v. Penrikyber Navigation Col. Co., (1902), 1 K. B. 221, 4 W. C. C. 115, 85 L. T. 477, 71 L. J. K. B. 192, 50 W. R. 197, 66 J. P. 198, 6 N. C. C. A. 272; Kenney's Case, 222 Mass. 401, 111 N. E. 47.

W. C.-62

The fact that a mother had made a will in favor of her deceased son, who had contributted to her support, is not material in determining her claim to the benefit provided by the act, in the absence of evidence that the will was the result of an agreement.98

Where a son contributed to the support of his parents within four years it is immaterial under the Illinois Act that the parents were not dependent upon him.99

Dependency of a girl upon her grandfather for whose death she claimed compensation, being determinable by the conditions. which existed at the time of the accident, would not be affected by the fact that, at the time of the hearing, she was earning some wages, or that the mother as a matter of spite to the grandmother, was offering to take care of her.1

The fact that a mother had $300.00 or $400.00 in a bank drawing 4% interest, does not bar her of a right under the Workmen's Compensation Act."

The Supreme Court of Kansas has held that the fact that the parents of deceased had ample property and income to sustain them, if properly used, was immaterial, if they actually depended upon the son's contributions to maintain them in the manner of living they had chosen.3

"In determining compensation under the statute it is immaterial whether the claimant inherited anything from the estate of the employee. Under the General Statute of Minnesota, 1913, Sec. 8208, the minimum compensation to a person wholly dependent on the deceased employee is $6.00 a week for 300 weeks,"

98.

Miss. River Power Co. v. Indus. Comm., 289 Ill. 353, 124 N. E. 552, 5 W. C. L. J. 50.

99. Humphrey v. Indus. Comm., 285 Ill. 372, 120 N. E. 816, 3 W. C. L. J. 102.

1. In re Yeople, In re John B. Rose Co., In re Travelers' Ins. Co., 182 App. Div. 438, 169 N. Y. S. 584, 1 W. C. L. J. 1135, 16 N. C. C. A. 148. Parson v. Murphy, 101 Neb. 542, 163 N. W. 847, 16 N. C. C. A. 174. Fennimore v. Pittsburg-Scammon Coal Co., 100 Kan. 372, 164 Pac. 265, 16 N. C. C. A. 176.

2.

3.

4. State ex rel. Crookston Lbr. Co. v. District Court of Beltrami Co., 131 Minn. 27, 13 N. C. C. A. 555, 154 N. W. 509.

Mere gratuituous pittances-given by a sister and an aunt are not sufficient to deprive a mother and sister, otherwise totally dependent upon deceased, of an award for total dependency."

Where the parents were receiving a pension in addition to the son's contributions, a finding of partial dependency was in accordance with the facts in the case."

The fact that the dependents draw benefits from a fireman's relief association, does not affect their right to the full amount of compensation under the Minnesota Act."

Section 204 of the Pennsylvania Act reads: "Receipt of benefits from any association, society, or fund shall not bar the recovery of damages, by action at law, nor the recovery of compensation under article 3 hereof, and any release given in consideration of such benefits shall be void.""

§ 383. Claim for Compensation by Personal Representative or Administrator.-Under the Illinois Workmen's Compensation Act, Sec. 19, it is not necessary that the executor or administrator of a servant, killed in the course of his employment, file a claim for compensation, but it is sufficient if the petition is filed by the parties entitled to compensation."

Where a widow, who was wholly dependent upon and the sole dependent of deceased, died and the administrator of the estate of the deceased workman sued for compensation, the court in construing the Kansas Act held that, the action was prosecuted by the proper party, and that the right to the full amount of compensa

5.

Petrozino v. Amer. Mut. Liab. Asso., 219 Mass. 498, 107 N. E 370, 9 N. C. C. A. 594.

6. Binkley v. Western Pipe & S. Co., (Cal.), I. A. C. 1 Nat. Comp. Jour., (1914), 6 N. C. C. A. 272; Johnson v. Mountain Commercial Co., 1 Cal. I. A. C. D. (1914), 11, 6 N. C. C. A. 272; Ress v. Youngstown Sheet & Tube Co., Ohio Ind. Com., (1914), 6 N. C. C. A. 273.

7. State ex rel. City of Duluth v. District Court of St. Louis Co., 134 Minn. 26, 158 N. W. 791.

8. Decker v. Mohawk Min. Co., 265 Pa. 507, 109 Atl. 275, 5 W. C. L. J. 889.

9. Mississippi River Power Co. v. Indus. Comm., 289 Ill. 353, 124 N. E. 552, 5 W. C. L. J. 50.

tion allowed by subdivision 1, of section 5905, General Statutes of 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." 10

In proceedings for compensation under the Massachusetts Workmen's Compensation Act, it has been said: "The administrator of the widow of a deceased employee is entitled to the weekly payment provided by part 2, section 6, of the act, 'from the date of the injury' until the time of the decease of the widow. In this connection it is of no consequence that the widow deceased before any payment was made to her. No compensation had been paid to her because of pending negotiations as to settlement for a lump sum. She was herself conclusively presumed to be dependent upon the employee, and the obligation rested strongly on her to support their minor children.” 11

Under the New Jersey Workmen's Compensation Act, the proceedings for compensation should be brought by the executor or administrator, and in the absence of such persons then the person entitled to administration.12

Where the father of a deceased employee lived in Austria, and instituted proceedings by an attorney in fact, who bore no relation to the parent, and who acted upon the authority of an unauthenticated letter received by him from the father, the court held that this letter constituted no legal authority for his action taken in filing the application.13

The administrator of a deceased employee has a right to prosecute an application for compensation and collect any award made.

10.

Smith v. Kaw Boiler Works, 104 Kan. 591, (1919), 180 Pac. 259, 4 W. C. L. J. 87.

11. Coakley's Case, 216 Mass. 71, 102 N. E. 930, Ann. Cas. 1915A 867; In re Bartoni, 225 Mass. 349, L. R. A. 1917E 765, 114 N. E. 663, (1916), 16 N. C. C. A. 88.

12. Connors v. Public Service Electric Co., 89 N. J. L. 99, 97 Atl. 792. 16 N. C. C. A. 802; Coster v. Thompson Hotel Co., 102 Neb. 585, 168 N. W. 191, 16 N. C. C. A. 803.

13. Western Indemnity Co. v. Indus. Comm. of Cal., 35 Cal. App. 104, 169 Pac. 261, 16 N. C. C. A. 804.