an action for his death resulting from such injuries. Hecht v. Ohio &c. Railroad, 132 Ind. 507. The Statute of Limitations begins to run from the moment of the injury, and is not suspended by the lapse of time between the death and qualification of the personal representative. Fowlkes e. Nashville &c. Railroad, 9 Heisk. 829. But in Colorado, where the statutory year was lost by an excusable mistake in suing the wrong party, the commencement of such action was held sufficient compliance with the statute to sustain a later action begun after the lapse of the year. Hayes v. Williams, 17 Col. 465. Damages. The measure of damages in a suit for negligence causing death is compensation for the pecuniary loss to the estate, taking into consideration the age, health, strength, and ability of the intestate to earn money. Lapsley v. Union Pacific Railroad Co., 50 Fed. Rep. 172; Telfer v. Northern Railroad Co., 1 Vr. 189. The "pecuniary loss," which survives after the husband's death pending a suit brought by him for his wife's death, includes damages for loss of a wife's services and earnings and the expenses necessarily incurred by reason of the injury, but not for the loss of her society. Cregin v. Brooklyn City Railroad, 83 N. Y. 595; S. C. 18 Hun 368. So, where an injury to the person dies with the plaintiff, the action still survives for injury to his team and for medical attendance necessitated by his own injury, but not for the injury to his person. Randall v. Northwestern Telegraph Co., 54 Wis. 140. In the statutory action only the actual damages for loss of a son's services survive. James . Christie, 18 Mo. 162. And under a statute giving a right of action for actual damages no recovery, even of nominal damages, can be had in an action by a husband for the death of his wife in the absence of proof of the value of her services or the advantage in money reasonably to be expected if she had lived. McGown v. International &c. Railroad, 85 Tex. 289. It has been held that a wife as administratrix could recover only such damages as her husband might have recovered if he had not died pending the suit, while individually she might recover for the injury sustained by her by his death. Frink v. Taylor, 4 Greene (Iowa) 196. And under a statute giving a parent all damages for the abduction of a child transported out of the state by the master of a vessel and dying at the outward-bound port, it was held that no damages could be recovered by the father for the loss of his son's services after his death. Nickerson v. Harriman, 38 Me. 279. On the other hand, it has been held that the damages that an administrator may recover for the death of the decedent by the carelessness of the defendant are not merely nominal, but are damages for the expense of board, nursing, medical attendance, loss of time and physical and mental pain and distress and anxiety of mind. Corliss v. Worcester &c. Railroad, 63 N. H. 404. They are not only the damages the deceased might have recovered, but damages for the loss and deprivation resulting to the parties to whom the action survives. Collins v. East Tennessee &c. Railroad, 9 Heisk. 841; even though the death be instantaneous. Nashville &c. Railroad v. Prince, 2 Heisk. 580, overruling Louisville &c. Railroad v. Burke, 6 Coldw. 45. And in Connecticut, in an action by an administrator for damages to the deceased in a railroad accident caused by the neglect of the defendant punitive damages may be assessed. Murphy v. New York &c. Railroad, 29 Conn. 496. To recover the statutory damages for the benefit of the widow and next of kin it is not necessary that they should be dependent for support on the deceased. Illinois Central Railroad v. Bannon, 5 Wall. 90. But demands for the support of the deceased and his family prior to the injury are not included in a statute providing that "any demand for the support of the deceased" shall be paid out of the statutory recovery. State v. Dakota County Probate Court (Minn.), 53 N. W. Rep. 463. As to what is a reasonable amount, considering the chances of life, the amount of earnings, and the support furnished, see Fordyce v. McCants, 55 Ark. 384. The amount recovered by the administrator becomes part of the personal estate to be distributed according to the Statute of Distributions, Little Rock &c. Railway . Townsend, 41 Ark. 382; free from the claims of creditors and legatees, Baker v. Railroad, 91 N. C. 308; and if the executor refuses to enforce collection and secures his discharge, a successor may be appointed to complete the administration of the estate. Merkle v. Bennington, 68 Mich. 33. In other cases it is held that the damages recovered must go to relatives according to the injury sustained and the verdict, Richardson v. New York Central Railroad, 98 Mass. 85; and will not become general assets of the estate, the administrator being but a trustee for the benefit of the widow and children or next of kin. Perry v. St. Joseph &c. Railroad, 29 Kan. 420; Kansas Pacific Railroad v. Cutter, 16 Kan. 568. The distribution of damages recovered for negligence causing death, is governed by the statute in force at the time of the death, and not at the time the recovery is had. Richmond v. Chicago &c. Railroad, 87 Mich. 374. *SECTION II. Particular instances where the executor or administrator is entitled to choses in action which the deceased might have put in suit, and where not.t The cases hitherto collected on this subject have been pointed out merely to develop the general principle as to the right of executors and administrators to the choses in action, on which the deceased himself might have sued. It remains to advert to some particular instances respecting this portion of an executor's or administrator's estate, as well in which his title has been denied as where it has been established. First, as to annuities. An annuity is a yearly payment of a certain sum of money granted to another in fee, for life, or Annuities: for years, charging the person of the grantor only (q). As it concerns no land, it is so far considered personal property, that although granted to a man and his heirs or the heirs of his body, it is not an hereditament within the Statute of Mortmain, 7 Edw. I. stat. 2 (r), nor entailable within the statute de bonis (s); and Lord Coke calls an annuity granted to a man and his heirs a fee simple personal (t). But in one respect, most important to the present subject, an annuity partakes of the nature of real property: viz., that when granted with words of inheritance, it is descendible, and goes to the heir, to the exclusion of the executor (u). Unless, however, words of inheritance are employed in the grant, it has been held that the annuity will pass to the executors: As where a testator gave his real and personal estate to his wife, subject, amongst other bequests, to an annuity of 50l. to A. B. forever; and it was held, that for the want of the word heirs in the gift, the annuity passed, on A. B.'s death, to his personal representative (v). There have been some modern decisions on the question whether annuities are to be considered real or personal estate. In Lord Stafford v. Buckley (x), Lord Hardwicke decided, that an annuity in fee of 1,000l., granted by King Charles the Second out of the Barbadoes duties, was not a realty within the statute de bonis, or Statute of Frauds: and his lordship said, it was a personal inheritance, which the law suffers to descend to the heir (y). In Lady Holdernesse v. Lord Carmarthen (z), Lord Thurlow held that an annuity of 4,000l. charged upon the post office, until a sum of 100,000l. should be paid, in order to be laid out in land, was a mere personal annuity. In Aubin v. Daly (a), it was held by the Court of Queen's Bench, with respect to the same annuity which was the subject of Lord Hardwicke's decision in Lord Stafford v. Buckley, that the legal estate and interest in it passed by a will, not executed according to the Statute of Frauds, in which there was a residuary clause bequeathing all the rest, residue and remainder of the personal estate, of what kind and nature whatsoever, to the executors (b). These cases of personal annuities in fee seem to form an exception to two general rules: the one, that, before the Wills Act (1 Vict. c. 26) came into operation, what would *devolve upon the heir, could not be devised from him, but by a will attested according to the Statute of Frauds : and the other, that though personalty be specifically bequeathed, it will in the first instance vest in the executor, and form part of his estate. In the cases of annuities above mentioned, the foundation of the decision that they were personal property, was, that Canal shares, &c. they were in no way connected with land. But where an inheritance is granted, which arises out of land, it is considered. real property, and a fortiori will not go to the executor. In Buckeridge v. Ingram (c), shares in the navigation of the River Avon, under the statute 10 Anne, were held real estate (d). So in Howse v. Chapman (e), a share in the Bath Navigation was held to be real property, which descended to the heir and the same was holden as to a New (y) 2 Ves. Sen. 178. (2) 1 Bro. C. C. 377. (a) 4 Barn. & Ald. 59. (b) But where the testator devised his freehold estates to A. and B. and their heirs in trust, to permit his wife to hold and enjoy the same, and to receive the rents thereof for her life; and after her decease, in trust to permit his nephew, his heirs and assigns, to hold and enjoy the estates, and to receive the rents thereof forever, but subject to the payment of 201. yearly forever, to his niece, her executors, administrators, and assigns; with the payment of which sum the testator made chargeable his said estates, in manner and form aforesaid, immediately after the decease of his wife; Shadwell, V.-C., held, that the niece took a legal rentcharge of 201. per annum in fee: Ramsay . Thorngate, 16 Sim. 575. (c) 2 Ves. Jun. 653. (d) Portmore v. Bunn, 1 B. & C. 699, 702. (e) 4 Ves. 543. River share (f). But in Bligh v. Brent (g) the Court of Exchequer held that shares in the Chelsea Water Works were to be considered as personal property. And it has been usual of late years when Acts of Parliament are obtained for the making of navigable canals, and similar works, to procure a clause to be inserted, directing that the shares shall be deemed to be personal estate (h). under So by the Companies Act, 1862, it is enacted that "the shares or other interest of any member in a company under this Shares Act shall be personal estate capable of being trans- Companies Acts. ferred in manner provided by the regulations of the Company" (i). It is here necessary to notice the rights of executors and administrators with respect to property in the public funds. Stock in the *The statute 1 Geo. I. sect. 2, c. 19, after creating a public funds: capital or joint stock, on which annuities at the rate of 5 per cent. were to be attending, declares (sect. 9), "that all persons who shall be entitled to any of the said annuities, and all persons lawfully claiming under them, shall be possessed thereof, as of personal estate, and the same shall not descend to the heir: " It then enacts (sect. 11), that no method of assigning or transferring the stock, other than that pointed out by the act, shall be good and available in law; and it is provided by the 12th section, that any person possessed of the stock, with the annuity attending the same, may devise the same by writing, attested by two witnesses, but that no such devisee shall receive payment, till so much of the devise as relates to the stock be entered in the proper office at the bank; and in default of such devise, the stock and annuities attending the same shall go to the executor and administrator. The other acts creating new stocks contain, almost all of them, provisions nearly similar; and these provisions have created a doubt, whether it was not the intention of the legislature that stock should, by the will, pass to the devisee, without the assent of the executor, and without, in the first instance, vesting in him, and being assets in his hands (j). But a series of modern decisions seems now to have (ƒ) Drybutter v. Bartholomew, 2 P. Wms. 127. Davall v. New River Comp., 3 De G. & Sm. 394. A lease of a lighthouse, and the tolls thereof, by the Corporation of Trinity House, has been held to be a chattel real: Ex parte Ellison, 2 Y. & Coll. Exch. 528. (g) 2 Y. & Coll. Exch. 268. See Hayler v. Tucker, 4 Kay & J. 248, per (h) See Thompson v. Thompson, 1 Coll. 381. Robinson v. Addison, 2 Beav. 515. (i) 25 & 26 Vict. c. 89, sect. 22. (j) Pearson v. Bank of England, 2 Bro. C. C. 529. Bank of England v. Lunn, 15 Ves. 572, 578. |