I dissent. It may be conceded that when a wife is living with her husband at the time of his death the *Page 537 statute presumptively makes her a dependent; but when living separate and apart from him the question of dependency is to be determined in accordance with the facts. But in making such determination the fact that she then was his wife is still an important factor or element. She not living with him, I think the cause, or causes, and the circumstances of her living separate and apart, or whether she had or had not forfeited or abandoned her legal right to his support, are of controlling importance. I readily see that a wife who, without cause or excuse, deserted her husband, and against his will lived separate and apart from him, in effect forfeited her right to support from him, or not looking to him for support and expecting none, is not a dependent. But how about a wife who, without fault, is living separate and apart from her husband and out of necessity is compelled to earn her own living because of his failure to support her, due either to his inability or to his willful neglect, not acquiesced in or condoned by her, and who has not forfeited her legal right to support from him?
The facts and circumstances of the applicant's living separate and apart from the deceased are recited in the prevailing opinion. Upon them I do not see anything to justify a finding — much less a conclusive finding — that she, in so living separate and apart from him, in any particular was at fault, or had forfeited her legal right to support from him, or had violated any of her marital obligations. The facts but show that she so lived separate and apart from him and was compelled to earn her own living because of his inability to support her or because of his neglect to do so, or both. But I do not see wherein she had acquiesced in or condoned any such conduct on his part, or had forfeited her legal right to look to him for support. In other words, on the disclosed facts, her status as a wife was in all legal respects the same as though she had been living with him at the time of his death. I do not see wherein it was any different, except as to the method of making the status and dependency evident. In the one instance, the parties living together, the dependency is made evident by the mere statutory presumption. In the other, where they *Page 538 are not living together at the time of the husband's death, the dependency may be, as it here is, made evident by the facts. That is, the disclosed facts here show all that is embodied in or implied by the presumption. To say that the applicant is not entitled to any award because the deceased had not contributed much if anything toward her support is but to say that a wife, though living with her husband at the time of his death, is entitled to no award if he had not during the marriage relation contributed much if anything toward her support, by reason of which she was compelled to earn her own living.
Further, the applicant was only 15 years of age when the deceased married her — but a mere child wife — and had no means of support except by her own labor. That she had consulted a lawyer with the view of a divorce and abandoned such action upon the deceased's promise to support her tends to show that she looked to him for and expected support from him. On the record, I think it fairly inferable that their living separate and apart was only temporarily and until circumstances admitted of their living together, or until the deceased had means or opportunity to support her. At any rate, on the record I do not see any conclusive disclaimer on her part. No such disclaimer should be inferred from the fact that the deceased had not contributed much if anything toward her support.
On the record I can see different opinions might well be entertained as to the amount of the award; but I do not think that the applicant's claim should wholly be denied. *Page 539