Posthumous child

that he had given her money and she had gone to Nova Scotia and he told her that he would support her and the child. There had never been any talk of legal separation or divorce. It was held that the widow was entitled to compensation. Forsell v. Massachusetts Employés Insurance Association, Mass. Indus. Acc. Bd. (Appeal pending to Supreme Judicial Court).

Where a widow and minor child had not been living with the deceased workman for some time prior to his death, a claim for compensation by the widow was contested by the employer but the Board awarded compensation to the widow. Kelly v. Peoples Outfitting Co., Mich. Indus. Acc. Bd., Oct. 15th, 1913; The Indicator, Oct. 20, 1913, at page 417.

An employé was killed in the course of his employment leaving surviving him a widow and minor child, aged twenty months, a widowed mother, and two sisters, aged twentythree and eight years respectively. Some months prior to his death he deserted his wife and child without any fault on the part of his wife, since which time he had contributed nothing to their support. He had never contributed anything toward the support of his mother or father or of his sisters. It was held that his minor child was wholly dependent upon him for support; that his widow was wholly dependent upon him for support; that neither his mother nor either of his sisters was wholly or partially dependent upon him for support. Re Laura M. Shaffer, Claim No. 41, Ohio St. Lia. Bd. Awd., June 14, 1912.

11. Posthumous child.

A posthumous child may be a dependent of a deceased workman and entitled to compensation. (House of Lords), Villar v. Gilbey (1907), A. C. 139; Williams v. Ocean Coal Co. (1907), 97 L. T. 150; 9 W. C. C. 44. An unborn child is dependent upon the earnings of the father. Day v. Markham (1904), 6 W. C. C. 115.

Mother of illegimate child as dependent of father of child

12. Illegitimate children.

An illegitimate child who was taken in charge by a friend of the mother, was held not to be a dependent of the mother who was killed by an accident. Briggs v. Mitchell (1911), 48 Scotch L. R. 606; 4 B. W. C. C. 400. But see Schofield v. Orrell Colliery Co. (1908), 100 L. T. 104; 2 B. W. C. C. 301, cited in paragraph 13, below.

Where compensation is awarded to an illegitimate child, it should not be in a sum greater than the deceased could have been compelled by law to pay for the child's support. Gourlay v. Murray (1908), 45 Scotch L. R. 577; 1 B. W. C. C. 335.

13. Posthumous illegitimate child.

A posthumous illegitimate child may be a dependent and entitled to compensation for the death of the father of the child. Schofield v. Orrell Colliery Co. (1908), 100 L. T. 104; 2 B. W. C. C. 301.

14. Parents of illegitimate children.

Neither the mother nor the putative father of an illegitimate child are entitled to compensation upon the death of the child, especially where the mother is living with and being supported by her husband. McLean v. Moss Bay Hematite Iron and Steel Co. (1909), 100 L. T. 871; 2 B. W. C. C. 282.

15. Mother of illegimate child as dependent of father of child.

The mother of an illegitimate child who has obtained an order of filiation against the father of the child is entitled to compensation on behalf of the child, upon the death of the father through an accident, even though the father had evaded payment of the amount awarded in the filiation proceeding, by changing his name and concealing his identity. Bowhill Coal Co. v. Neish and Others (1908), 46 Scotch L. R.

Aliens

250; 2 B. W. C. C. 253. Where a man and woman hold themselves out to the world to be married and the man is killed by accident, it seems that the woman and her child may recover compensation upon sufficient evidence being given of a common-law marriage. Fife Coal Co. v. Wallace (1909), 46 Scotch L. R. 727; 2 B. W. C. C. 264.

If a woman is not legally married to a workman she is not entitled to compensation for his death. Aldinger v. Ransome Concrete Co., Cal. Indus. Acc. Bd., Sept. 12, 1913.

16. Inmate of workhouse.

A person in a workhouse is not necessarily dependent on the earnings of another because that other is legally liable to contribute to the cost of his maintenance. Rees v. Penrikyber Navigation Colliery Co. (1902), 87 L. T. 661; 5 W. C. C. 117.

17. Aliens.

Where there is no special provision in the Act relative to the residence of dependents, it is no objection to a claim for compensation by dependents that they are alien residents of a foreign country. Varesick v. British Columbia Copper Co. (1906), 12 B. C. 286; 1 B. W. C. C. 446. A foreign workman, while employed in a mine within the province of British Columbia, was killed by an accident arising out of and within the course of his employment. The dependents were alien and resident abroad. It was held that the personal representatives of the deceased resident in the province could recover compensation on behalf of the dependents. Krzus v. Crow's Nest Pass Coal Co. (1912), 5 B. W. C. C. 727. In the last-mentioned case the Judicial Committee of the Privy Council reversed the Court of Appeal of British Columbia, (1911), 4. B. W. C. C. 469.

The treaty of the United States with Italy, of 1871, does not require that the alien non-resident dependents of a workman killed in the United States shall have the same right to

Dependents receiving other income because of death of workman recover against the workman's employer that resident citizen dependents possess. Maiorano v. Baltimore & O. R. Co.,

213 U. S. 268.

An appeal involving the same question in relation to the treaty between the United States and Austria-Hungary, in the case of Miknolas v. Empire Rubber Co., arising under the New Jersey Act, was on the calendar of the Supreme Court of that State in 1913, but the appeal was abandoned. The lower court in New Jersey held that the Act did not violate the treaty. The New Jersey Act excludes nonresident alien dependents. Very few of the acts contain such drastic provisions on this subject as are found in the New Jersey Statute. Nearly all the Compensation Acts cover the point in some form.

18. Question of dependency is one of fact.

"The question of dependency is not a question of law at all. It is purely a question of fact." Main Colliery Co. v. Davies (1900), A. C. 358; 1 W. C. C. 92; 2 W. C. C. 108; Hodgson v. Owners of West Stanley Colliery (1910), A. C. (H. L.) 229; 102 L. T. 194; 3 B. W. C. C. 260. Both of the above cases were decided in the House of Lords.

19. Amount due partial dependent is a question of fact. The amount due to a partial dependent is a question of fact in each case. Littleford v. Connell (1909), 3 B. W. C. C. 1.

20. Dependents receiving other income because of death of workman.

Moneys coming to dependents on the death of a workman do not affect the question of whether or not they were dependent upon his earnings at the time of his death. Pryce v. Penrikyber Navigation Colliery Co. (1901), 85 L. T. 477; 4 W. C. C. 115.

Dependent's claim; death of workman after payments ceased

21. Right of dependents independent of that of deceased. A workman was injured by accident. He gave notice of injury, asking his employers to treat it as a notice under the Employers' Liability and Workmen's Compensation Acts. His employers settled with him for a lump sum, obtaining a receipt releasing them from all liability under the Employer's Liability Act and at common law. The workman died and his dependents claimed under the Workmen's Compensation Act, subject to the deduction of the sum paid under the settlement. The County Court judge found as a fact that there was no bona fide settlement and made an award in favor of the dependents. It was held that the right of the dependents was independent of, and not derived from, that of the deceased, and that they were therefore entitled to recover. Howell v. Bradford & Co. (1911), 104 L. T. 433; 4 B. W. C. C. 203.

The right of a widow to compensation is entirely separate from that of her husband and the signing of a release at common law by him prior to his death does not operate to deprive her of her claim for compensation under the Massachusetts Act. Cripps v. Aetna Life Ins. Co., Mass. Indus. Acc. Bd. (Appeal pending to Supreme Judicial Court).

An insurer does not have the right to deduct from the compensation due to the widow the additional compensation paid to an employé before his death on account of the loss by severance of a finger. Nichols v. London Guarantee & Accident Co., Mass. Indus. Acc. Bd. (Appeal pending to Supreme Judicial Court).

22. Claim by dependents when compensation to workman terminated before death.

A workman was injured, and received compensation. A memorandum of agreement to pay him compensation was filed, and on an application to review the payments thereunder were terminated: Subsequently the man died and his dependents applied for compensation. It was held that