delivered the opinion of the Court.
Thе question for decision in this case is whether or not a father, who has abandoned his minor child, and then the child is killed and damages аwarded for this unlawful killing, is entitled to share in this money as one of the heirs of the deceased child.
The Chancellor sustained the demurrer holding that the father was entitled to share in the proceeds since he had not been divorced from the child’s mother аnd no custody had been awarded of the child in his lifetime to either the father or the mother. A discretionary appeal wаs allowed and after some considerable study and investigation we have the matter for disposition.
The parties are Nеgroes. Joe Louis Anderson, a boy twenty-three years of age, was killed in an automobile accident. His older brother qualifiеd as administrator and sued for the death of the brother, Joe Louis. Damages were recovered by a settlement of the case. The decedent lived with his mother in Mississippi and, according to the allegations of her cross-complaint, this boy who was killed had lived with her all Ms life, and the father, Leroy Anderson, Sr., had never contributed anything or done anything for the boy that a father should. Under this state of facts (abandonment being averred in the strongest language possible) the father demurred because no divorce had ever been granted and no custody had ever been awarded of this child to the mother, and therefore he claimed to be entitled to his share under the statute of this estate. As said above this demurrer was sustained and a: discretionary apрeal allowed.
As far as we are advised or can find this identical question has never heretofore been determined in this State directly, bnt we think the question is foreclosed by previous related decisions.
The right of action for a wrongful killing is statutory and rests uрon sec. 20-607 et seq., T.C.A. This statute does not only create a right of action but provides how the proceeds of any reсovery for such wrongful death may be distributed. Where deceased leaves no husband, wife or child, the proceeds or the rеcovery under the statute go to the next of kin, “free from the claims of the creditors of the deceased, to be distributed аs in the case of the distribution of personal property.” Sec. 20-609, T.C.A.
Such a recovery as herein when realized becomes personal property and follows the distribution as such.
Haynes v. Walker,
Thus this being true, it is necessary that we read sec. 31-201, T.C.A., along with the sectiоn above referred to. This latter section provides for the distribution of the personal estate of the intestate. This section (sec. 31-201, T.C.A.) lists the order in which relatives of one dying intestate shall take the personal estate. Sub-division (4) of this Section is the оne applicable under
“If no husband, wife or children, to the father and mother in equal parts, but if either father or mother be dead, then to the survivor of them, provided, however, that where the father and mother of a person dying intestate have beеn divorced by valid decree which commits the custody of such person to one of the parents to the exclusion of the other, then the personal estate of such, person shall be distributed to that parent to whom such custody has been cоmmitted, as sole next of kin, to the exclusion of the other parent. ’ ’
Related questions to that herein presented arose in
Black v. Roberts,
In the recent case of
Shelton v. Shelton,
It is the general rule subject to exception where changed by statute that a surviving spouse’s misconduct, or abandonment or things of that kind, such as herein alleged, does not bar his or her right to succeed to the deceased spouse’s estate. This Court in a comparatively reсent case had this identical question before it in
Johnson v. Morgan,
“Our statutes providing for recoveries for personal injuriеs negligently inflicted, resulting in deaths, and designating for whose benefit such recoveries may be had are clearly in the nature of statutes providing for the descent and distributing of estates, and we are of opinion that the Courts can no more inquire into the worthiness or unworthiness of such beneficiaries in such personal injury cases than they can inquire into the worthiness or unworthiness of those who are designated as beneficiaries of the estates of decedents, and that the Courts cannot deny relief becаuse of unworthiness in either case unless authorized so to do by some statute.”
By statute in New York, and probably other states, the father who abandons an infant child is not allowed to have his distributive share in the child’s estate. See 26A C.J.S. Descent and Distribution sec. 47, page 609. In the absence of such a statute the father even though he does abandon and has never done anything for the child is entitled to his distributive share. We have no such statute in this State.
It results that the action of the Chancellor is affirmed. The costs of the appeal will be