66 S.W. 398
Ky. Ct. App.
1902

*573Opinion op the court by

JUDGE HOBSON —

Reversing.

On the former appeal of this case (see Thomas’ Adm’r v. Gas Co., 108 Ky., 225 (21 R., 1690) (56 S. W., 153) the judgment of the circuit court, dismissing the action on a peremptory instruction of the court to the jury to find for the defendant, was reversed, and the cause remanded for (further proceedings. When the case was returned to the circuit court, James Thomas, the administrator oí’ Isaac Thomas, was dead; and S. P. Perrine, who had been appointed administrator dc bonis non of the estate, moved the court to revive the action in his name. This motion was overruled, the court holding th\at the action, after the death of James Thomas, could not be revived. The ground •of this ruling was that James Thomas was the father of the decedent, Isaac Thomas, who left no children, and that as, under the statute, the whole recovery was for the benefit of the father, the action abated upon his death. The propriety of this ruling involves the construction of* section 241 of the Constitution, and section 6 of the Kentucky Statutes, enacted pursuant to it: “Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such ease, damages may be recovered for such death, from the corporations; and persons so causing the same. * Until otherwise provided by law, the action to recover such damages shall in .all cases be prosecuted by the personal representative ofi the deceased person. The General Assembly may provide how the recovery shall go and to whom belong; and until such provision is made the same shall form part of the estate of the deceased person.” Constitution, section 241. “Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then in every such case, damages may be recovered for such death from *574tlie person or persons, company or companies, corporation or corporations, their agents or servants, causing” the same, and when the act is willful or the negligence is gross, punitive damages may be recovered, and the action to recover such damages shall be prosecuted by the personal representative of the deceased. The amount recovered, less funeral expenses and the cost of administration, and such costs about the recovery, including attorney fees, as are not included in the recovery from the defendant, shall be for the benefit of and go to the kindred of the deceased in the following order, viz.: (1) If the deceased leaves a widow or husband, and no children or their, descendants, then the whole to such widow or husband. (2) If the deceased leaves either a widow and children or a husband and children, then one-half to such widow or husband- and the other one-half to the children of the deceased. (3) If the deceased leaves a child or children, but no widow or husband, then the whole to such ohild or children. If the deceased leaves no widow, husband or child, then such recovery shall pass to the mother and father of deceased, one moiety each, if both be living; if the mother be dead and the father be living, the wthole thereof shall pass to the father; and if the father be dead and the mother living, the whole thereof shall go to the mother; and if both father and mother be dead, then the whole of the recovery shall become a part of the personal estate of the deceased; and after the payment of his debts, the remainder, if any, shall pass to his kindred more remote than those above named, as is directed by the general law on descent and distribution.” Kentucky Statutes, section 6. Section 3844, Kentucky Statutes, is as follows: “When any personal representative shall commence an action, or shall be sued, and shall die, be removed or superseded by another *575before the termination of the action, Ms successor may, by order of court, be substituted in the place or stead of the original plaintiff or defendant.”

Previous to the adoption of the present Constitution, where death resulted from willful neglect no recovery could be had, under the statute, unless the decedent left wife or child; and there could be no recovery for ordinary negligence, under the other section of the statute, for the death of persons in the employ of the compalny. To change this, and make a harmonious rule governing the whole subject, the above section of the Constitution, and the statute purr suant to it, were enacted. The plain purpose of these provisions was to allow a recovery in all cases by the', per.sonal representative. The amount recovered goes first tio pay funeral expenses, cost of administration, and expenses incidental to the recovery, then to certain kindred; and, if none, it then passes, after the payment of debts, under the general law on descent and distribution. The purpose of this was to provide for a recovery in all contingencies where death had resulted from negligence or wrongful act, without regard to the kin of the intestate who survived him. The beneficiaries are not proper parties to the! action. It, under the statute, is to be brought by the personal representative. If James Thomas had not qualified as the administrator of Isaac Thomas, and appellant, Perrine, had qualified in the first place as such administrator, then the death of James Thomas would have had no effect upon the action. The administrator, notwithstanding- his death, might have prosecuted the action to a recovery, and, after paying the preferred claims, would haye held the balance, of the fund for the estate of James Thomas. James Thomas being in esse when his son died, his right attached, and, having attached, descended at his death, with his Other per*576sonal property. His right is against the administrator, who, under the statute, is authorized to prosecute the suit just as upon other choses in action or claim. The fact that the defendant to the action succeeded in 'defeating a recovery until one or more of the beneficiaries died had! no effect upon its liability to the administrator. The law regards that as done which ought to have been done; and, if it is finally held liable, those 'persons who would .have gotten the fund if the claim had been paid off when the right attached are not affected by the fact that they did not survive the final result of the litigation. We are referred by the learned counsel to a number of decisions in other States, under statutory provisions not similar to ours, which uphold the judgment of the circuit court; but we are of opinion that the legislative intent under our statute is too clear to be disregarded.

Judgment reversed, and cause remanded, with directions to sustain the motion for a revival, and for further pro- • ceedings consistent with the opinion.