The opinion of the court was delivered by
Tart, J.
When the death of a person results from the. tortious act or neglect of another, two rights of action.may arise, one- to recover damages sustained by the deceased at the time of or after the injury and prior to his death; the other to recover damages to the widow and next of kin. Both rights must be *441¡prosecuted in the name of the personal representative of the deceased. In this case it is insisted, under a general demurrer, that the declaration is defective in that it does not show for which cause of action the plaintiff is seeking to recover, the ■defendant claiming that it should be explicitly averred whether the actions were brought for the benefit of the estate or of the widow and next of kin. We think it should so appear from the •declaration, and the question is, does it in the one under consideration-? It is-apparent that the substantial averments of the declaration in both cases must be the saíne, i. e., that the death ■of the intestate was caused in this State, by the tortious act, neglect or default of the defendant, and that the plaintiff is the personal representative of the deceased. If the declaration contains the above averments it is sufficient, and under it a recovery can be had for any damages sustained by the deceased on account of the cause *of action mentioned in R. L. ss. 2134-5. But when to the above averments is added the allegation that the intestate left a widow and next of kin', or either, it sets forth ■a, cause of action under the subsequent sections, 2138-9. Every fact which it is incumbent upon the plaintiff to prove is fully set forth in such a declaration. Why, then, is it not sufficient ? It is only by force of the statute that an action for the benefit of '■the widow or next of kin can be maintained, and in bringing it the pleader could have recited the statute, counted upon it, or without referring to it in any manner, alleged those facts which brought the case within the terms of it, stating those facts upon which the claim was sought to be maintained. Gould’s Pl. ch. 3, s. 15, note 3. In respect of this question, which is made under points 1, 2 and 5 in the defendant’s brief, wo hold the declaration sufficient under sections 2138 — 9 to permit a recovery for the benefit of the widow and next of kin. It is contended- that there is no allegation that the deceased left a widow or next of Ain, but the fact is otherw-ise. In the original writ the person killed is described as deceased, leaving a widow and one minor ■child. This part of the writ, although descriptive of the person, iinay be referred to to help out the want of a material averment in *442the declaration. Church v. Westminster, 45 Vt. 380" court="Vt." date_filed="1873-02-15" href="https://app.midpage.ai/document/church-v-town-of-westminster-6579676?utm_source=webapp" opinion_id="6579676">45 Vt. 380. In the-additional count it is alleged that Westcott was killed, leaving a widow and next of kin surviving. Such an allegation is undoubtedly necessary, and in this respect both counts are sufficient. There is no allegation in the declaration that the widow and next, of kin were living at the time the suit was brought, and the defendant insists that the declaration is defective for that reason. We think it depends whether the cause of action dies with the? beneficiary. The statute provides that the action shall be-brought in the name of the personal representative of the-deceased, and that “ the amount recovered shall be for the benefit of the wife and next of kin.” The recovery being solely for-their benefit, it necessarily follows that the action 'cannot be maintained if there are no such persons in existence, and if it cannot be, then the allegation that there are such persons in existence at the time the suit is brought is necessary. For the want' of such an allegation, the declaration in this case is defective. Woodward v. C. & N. Ry. Co., 23 Wis. 400" court="Wis." date_filed="1868-06-15" href="https://app.midpage.ai/document/woodward-v-chicago--northwestern-railway-co-6600072?utm_source=webapp" opinion_id="6600072">23 Wis. 400; State v. B. & O. R. Co., (Md.) 17 A. 88" court="Md." date_filed="1889-03-01" href="https://app.midpage.ai/document/harvey-v-baltimore--ohio-railroad-7897804?utm_source=webapp" opinion_id="7897804">17 Atl. Rep. 88.
The difficulties further suggested by the defendant’s counsel-in respect of the being unable to defend the case, upon the-ground that the elements of the damages are not sufficiently set forth, are not those caused by any defect in pleading, but such as can always be removed by suitable specifications, which all-courts have full power to order. The English statute, 9 and 10' Vic., requires no change in the ordinary mode of declaring for the injury, but requires the plaintiff to deliver with the declaration a “full particular of the person or persons for whom or in. whose behalf the action is brought.” In proceedings by indictment under analogous statutes, it has been held that “it is sufficient if the administrator is named, and that it is alleged that' the deceased has left heirs-at-law.” Com. v. R. Co., 11 Cush. 512; 5 Gray, 473; 121 Mass. 36" court="Mass." date_filed="1876-09-06" href="https://app.midpage.ai/document/commonwealth-v-boston--albany-railroad-6418620?utm_source=webapp" opinion_id="6418620">121 Mass. 36; State v. Gilmour, 4 Fost. 461. In Gettle v. B. &. O. R. Co., 3 W. Va. 376" court="W. Va." date_filed="1869-01-15" href="https://app.midpage.ai/document/baltimore--ohio-r-r-v-gettle-6590901?utm_source=webapp" opinion_id="6590901">3 W. Va. 376, it was held that the widow and next of kin should • be accurately set forth and designated by name, and that the damages were claimed for-*443their aid. There was no allegation that the deceased left a widow and kin and the declaration was clearly defective, and while the remarks of the judge may not have been obiter, they •do not contain a correct statement of the law. The strict rule •of pleading insisted upon, by the defendant’s counsel would require an allegation of every fact which tends in the least ■degree to affect the amount of damages to which the plaintiff is •entitled. Under what rule can it be consistently claimed that the residence of the beneficiary, the extent of his dependence, or his age, (although the latter facts might become very material in passing upon the question of damages) should be alleged in the declaration ? There is no rule requiring it. This latter point, if good law, could not avail the defendant under a general demurrer. A special demurrer only could reach it. An •allegation that the intestate left a widow and next of kin, •or either, and that they were living at the commencement of the suit, is all that is required in this respect.
Judgment affirmed with leave to replead.
Tyler, J., being absent in County Court, did not sit.