children."

In the opinion Chief Justice Simmons said: "It is well settled that at common law the words 'child' and 'children' mean only legitimate child and children." In the third case it was held: "The words 'child' and 'children,' appearing in a deed conveying to an unmarried female certain property during her life, and at her death to such child or children as she may leave living at the time of her death, will not include an illegitimate child of such female born several years after the making of the deed, unless it plainly appears from the language of the instrument that it was the intention of the grantor that an illegitimate child was to take thereunder. The word 'issue,' used in a subsequent part of the deed under consideration in the present case, is to be given the same meaning as the words 'child' or 'children.'" Mr. Justice Cobb, in delivering 171 the opinion, said: "The words 'children' and 'issue' in deeds, wills, and other conveyances must be held to mean legitimate children or issue, unless the context is such as to require a different meaning, or the circumstances surrounding the execution of the paper are such as to make the words import other than legitimates": 107 Ga. 20, 32 S. E. 937.

The exact question we have in hand has been decided by courts in other jurisdictions, and upon the application of the two rules of construction under discussion. In Dickinson v. Northeastern Ry. Co., 2 Hurl. & C. 735, it was held that the word. "child," in section 2 of 9 & 10 Victoria, chapter 93 (Lord Campbell's act, which is the prototype of our statute), means a legitimate child; and that an action could not be maintained on behalf of a bastard child against a railway company for the homicide of its mother. Counsel for the plaintiff in that case contended that the case was within the spirit of the act, for beyond question the child was dependent solely on the mother, and that the act must mean any child who was deriving pecuniary advantage, and is deprived thereof by the death. Pollock, C. B., said: "We have no doubt that in the act of parliament, as in all others, the word 'child' means legitimate' child only." In Gibson v. Midland Ry. Co., 2 Ont. 658, it was held, under a statute of Ontario similar to Lord Campbell's act, the mother of an illegitimate child could not recover damages for its death. To the same effect is Clarke v. Carfin Coal Co. (Scotland), [1891] App. Cas. 412. In Harkins v. Philadelphia etc. R. Co., 15 Phila. 286, it was held: "The mother of an illegitimate child is not within the words or meaning of the act of April 26, 1855, which enacts that the persons entitled to recover damages for any

injury causing death shall be the husband, widow, children, or parents of the deceased, and no other relative."" In his opinion, Thayer, P. J., after citing Dickinson v. Northeastern Ry. Co., 2 Hurl. & C. 735, said: "The line of argument adopted by the plaintiff's counsel in that case was much the same as that pursued by the plaintiff's counsel in the present case, viz., that the legislature intended the right of action to be coextensive with the moral right to support; that, for many purposes, the law recognizes the relationship of a bastard child to his parent; and that, therefore, the question of legitimacy or illegitimacy is immaterial. But we are not convinced by this reasoning. 172 It is true that some rights have been accorded by statute to illegitimate children and their mothers which did not exist at common law. The act of 27th of April, 1855, section 3 (Purdon's Digest, 810), enacts that illegitimate children shall take the name of the mother, and that they and the mother respectively shall have capacity to take or inherit from each other personal estate as next of kin and real estate as heirs, but this act conferred only limited powers upon persons of this description. It did not legitimate illegitimate children, and it was so ruled by the supreme court of this state," citing cases. In conclusion the learned justice said: "In addition it may be observed that, by the act of 26th of April, 1855, the right of action is given, not to the mother alone, but to the 'parents' of the deceased. If the effect of the act of 27th of April, 1855, were to legitimate bastards for all purposes, and to give to them and their natural parents the standing in all respects which the law accords to lawful children and lawful parents, then the natural father would equally with the natural mother be within the enabling words of the act. We do not think this to have been the purpose of the law, but are of the opinion that the legislature, in enacting the act of 26th of April, 1855, and when using the words husband, widow, children, parents of the deceased, and no other relative,' had in view the family relation as constituted and recognized by law, and that it was not intended to extend the benefits of the act to persons not falling within the legal definition of the enumerated relationships." In Alabama etc. R. R. Co. v. Williams, 78 Miss. 209, 84 Am. St. Rep. 624, 28 South. 853, it was held: "A mother cannot maintain an action for damages caused by the wrongful killing of her bastard son," citing Illinois etc. R. R. Co. v. Johnson, 77 Miss. 727, 28 South. 753, where it was held that an illegitimate half-sister cannot maintain an action under a statute of Mississippi entitling a

sister or brother to sue for the homicide of a sister or brother. In further support of the proposition that the right of action for a negligent or wrongful homicide is purely a statutory one and in derogation of common law, and that therefore the statute giving the right must be strictly construed and the case brought clearly within its provisions to enable the plaintiff to recover, we select from a number of cases the following: Good v. Towns, 56 Vt. 410, 48 Am. Rep. 799, wherein it was held: "Under the civil damage act, giving an action to one 'dependent' on the deceased, a plaintiff claiming to be his 173 widow must show a lawful marriage, and one claiming to be his child must show his legitimacy." Rowell, J., said: "It is true, as contended, that the language of the statute is broad, in any manner dependent'; but after all we think it should be construed to mean a legal dependency only, the same as though it read, in any manner legally dependent."" Dickinson v. Northeastern Ry. Co., 2 Hurl. & C. 753, was approvingly cited. Thornburg v. American Strawboard Co., 141 Ind. 453, 50 Am. St. Rep. 334, 40 N. E. 1062, wherein it was held that a statute giving a father a right of action for the homicide of his child confers no right upon one who marries the mother of a bastard child, and receives the child into his home as a member of his family, to sue for the death of the child. McDonald v. Pittsburg Ry. Co., 144 Ind. 459, 55 Am. St. Rep. 185, 43 N. E. 447, in which it was held a bastard is not a child within the meaning of the statute of Indiana providing that a father may maintain an action for the death of a child. It appeared in that case that the plaintiff, when the child for whose death the action was brought was six months old, received him from his mother and relieved her of his care and custody, and acknowledged him as his own son, and afterward discharged every duty as a parent toward him, and received from him all the services, obedience, and respect due from a legitimate son, and that his mother abandoned him and was dead, and that the deceased had no guardian or next of kin. The plaintiff's action was dismissed on demurrer. Citizens' St. Ry. Co. v. Cooper, 22 Ind. App. 459, 72 Am. St. Rep. 319, 53 N. E. 1092, in which it was held: "The right of a father or mother to recover damages for the wrongful killing of a child is statutory, and such an action cannot be maintained by a woman, where she is not the mother and has not legally adopted the child, although it was given to her in infancy, and she had ever since maintained and treated it as her own." Western Union Tel. Co. v. McGill, 57 Fed. 699, Am. St. Rep., Vol. 97-11

where it was held, under a statute of Kansas, giving a right of action for death by wrongful act, and providing that the dam. ages must inure to the exclusive benefit of the widow and chil dren, if any, or next of kin, that a widower could not recover for the wrongful death of his wife, who left children living, because he was not one of the beneficiaries of the statute, although under the Kansas statute of descent and distribution of estates a husband who survives his wife is entitled to a share of her personal estate. In the opinion, Sanborn, J., referring to the statutes giving a right 174 of action for the negligent killing of another, said: "Under these statutes the following rules have been established without dissent among the authorities: The action under them is entirely the creature of the statute. If the right to maintain it and to recover the damages allowed in it in any case is not expressly given by these statutes, the judgment rendered cannot stand. Where such a statute giving a new right of action for damages specifies the person or class of persons for whose exclusive benefit the damages are to be recovered, no damages to any other person or class of persons can be allowed in the action based on the statute." In 1 Shearman and Redfield on the Law of Negligence, section 136, it is said: "Where, as in England, Maine, New Hampshire, Massachusetts, Maryland, Pennsylvania, Louisiana, Georgia, Alabama, Missouri and Kansas, and other states, the statute [giving a right of action for homicide] specifies the 'child' of the deceased, an illegitimate child is not within the description."

There are, however, authorities of a different tenor. In Muhl v. Michigan Southern R. Co., 10 Ohio St. 272, the headnote is: "In an action by the administrator of a woman killed by the carelessness of the servants of a railroad company in running its locomotive, the petition alleging and the proof showing the deceased to have left a son as her sole surviving heir-held: 1. That it is error to order a nonsuit on the ground that such child is illegitimate; 2. That the fact of such child's legitimacy or illegitimacy can in no respect affect the right of the action in his behalf." It appears that the suit was based upon a statute of Ohio, which provided that the action for a homicide should be brought by the personal representative of the deceased, and that the recovery should be distributed to the "Widow and next of kin, in the proportions provided by law in relation to the distribution of personal estates left by persons dying intestate." The deceased left a lawful sister and an illegitimate son. The trial court granted a nonsuit, because the child alleged in the petition to

be next of kin was a bastard. This ruling was reversed by the supreme court, upon the ground that the action was properly brought in the name of the personal representative of the deceased, and that the question whether the child or sister should be regarded as the next of kin did not in any way affect the cause of action, for the reason that the right to sue existed in favor of the administrator in either case. It is true, 175 the court added: "But it is quite evident that the nearness or remoteness of kin on the part of the son of the deceased mother neither in fact nor by any canon of descent under the statute depended at all upon the circumstance of his being born within or without lawful wedlock." In view of the ruling made, this remark seems merely obiter. In Security Title Co. v. West Chicago Ry. Co., 91 Ill. App. 332, it was held: "1. It was the intention of the legislature, by section 2 of the act of 1872 (Laws 1872, p. 353), . . . . to remove the common-law disability of illegiti mate children; 2. Under the statute requiring compensation for causing death by wrongful act, neglect or default, an action can be maintained for the benefit of the mother of an illegitimate child, as the next of kin of such child." The Illinois statute seems to be the same as the Ohio statute just referred to, and provides that the recovery "shall be for the exclusive benefit of the widow and next of kin," etc. As the mother of an illegitimate child could inherit from it under the law of Illinois, the court held that she was included within the term "next of kin" of such child. In Marshall v. Wabash R. Co., 120 Mo. 275, 25 S. W. 179, it was held: "Under the provisions of section 4425 of the Revised Statutes of 1889, giving the father and mother the right to join in an action for damages for the wrongful death of their unmarried minor child, and, in case of the death of either parent, that such suit may be brought by the survivor, the mother of a deceased illegitimate minor child may in such case sue alone, and the reputed father need not and should not be made a party." In delivering the opinion, Black, P. J., said: "The harsh rules of the common law have been modified by express statute in this state, so that the mother is declared the natural guardian of her illegitimate child: Rev. Stats. 1889, sec. 5279. And section 4473 declares: 'Bastards shall be capable of inheriting and transmitting inheritance on the part of their mother, and such mother may inherit from her bastard child or children in like manner as if they had been lawfully begotten of her.'" It may be stated that the plaintiff in this case finally brought his action against the same defendant