(Dissenting.) — I cannot agree with the majority of the court in this case upon the question of the measure of damages therein.
The trial judge gave to the jury the following instruction on behalf of the plaintiff: “The administrator *472under the law represents the estate of the dead man, and in h-is representative capacity is entitled to recover, if he is entitled to recover under the testimony in this case, such an amount as will be equal to the estate that would be left by the deceased had he lived a natural life, and the amount you judge by taking into consideration his capacity and surroundings, education, health and probable length of life, judged by your common sense every day experience.”
“If you find for the plaintiff, it is your duty in assessing the damages to' award plaintiff such sum as you find from the evidence the deceased, Reuben Bow-den, would have accumulated during his natural life, taking into account his age, habits, health, mental and physical capacity and ability, his probable life expectancy, his probable net earnings after he would have reached the age of twenty-one years. The sum total of all these elements to be reduced to a money value and its present worth be given as damages.”
Each of these charges is assigned as error. The court in my judgment erred in giving each and every of these instructions. The suit was instituted under the following provision of our statute authorizing suits for the wrongful or negligent death of a perón: “Every such action shall be brought by and in the name of the widow or husband, as the case may be, and where there is neither widow nor husband surviving the deceased, then the minor child or children may maintain an action; and where there is neither widow nor husband, nor minor child or children, then the action may be maintained by any person or persons dependent on such person killed for a support; and where there is neither of the above classes of persons to sue, then the action may be maintained by the executor or administrator, as the case may be, of the person so killed; and in every *473such action the jury shall give such damages as the party or parties entitled to sue may have sustained by reason of the death of the party killed. Any action instituted under this article by or in behalf of a person or persons under twenty-one years of age shall be brought by and in the name of a next friend.” Sec. 3146 Gen. Stats, of 1906,
The clearly expressed design of this statute is to provide pecuniary compensation to those, and to those only, Who have lost or been deprived of something by the wrongful death, and this compensation is confined expressly by the statute to those who by it are expressly granted the right to sue. Duval v. Hunt, 34 Fla. 85, 15 South. Rep. 876. The statute gives no right to the heirs at law generally to sue or to recover anything, but utterly ignores them, and confines the right to compensation and to recovery, first and exclusively to the surviving husband or wife as the case may be, or, if there be neither husband or wife, then, (second) exclusively to minor child or children, and if there be neither husband, wife or minor child, then, (third) exclusively to those who may be dependent upon the deceased for a support, and, if there be none of the above named persons, then (lastly) an administrator as the personal representative of the deceased is permitted to sue and recover.
What damage, in the language of the statute, has an administrator sustained by reason of the death of the party killed? An administrator is the personal representative of the deceased appointed by the proper court to collect and preserve the assets of the estate, to pay its debts and make distribution of any overplus to those entitled thereto as heirs at law, his first duty being to the creditors of the estate. 18 Cyc. 55 et seq. As to this unliquidated and unestablished claim for damages for the negligent or wrongful death of the intestate there *474are no heirs at law- of the intestate, since as before seen the statute pointedly ignores them in conferring the right of recovery. There being no heirs at law entitled to distribution out of the proceeds of a recovery by an administrator in such a case, the only remaining duty duo from such an administrator in such a case is to- the lawful creditors, if any, of his intestate, since they are presumed to have sustained injury by the untimely death, if there are not other sufficient assets of the estate to pay their claims, and it, consequently, becomes the duty of such administrator as the legal representative of the deceased to sue for and recover such damages for the negligent death of his intestate, and such damages only, as will be sufficient, together with the other assets of the estate, to fully pay its lawful debts, including all burial expenses and the cost of administration including the lawful commissions of the administrator. The deceased owed no duty to- those who1 under the general law of descent became his heirs at law. They were not dependent in any wise upon him, and he was under no sort of obligation, legal or moral, to leave them at his death an inheritance of any kind, and they are deprived of no legal right or claim, upon him- if at his death he left nothing for them; to inherit. On the other hand if- the deceased owed debts at the time of his death the legal, as well as moral, obligation rested upon him to provide for their payment, and his administrator, standing in his shoes as his legal representative, is likewise under obligation, in his place and stead, to collect from: any lawful source sufficient assets to pay such debts. The result is that under our statute in such cases, where an administrator has the right to sue for damages for the negligent or wrongful death of his intestate, if there are no debts of the estate to be paid, or if there are other assets of the estate sufficient fully to pay them. *475the damages to be recovered by the administrator can be merely nominal,' but if there are debts of the estate and no assets with which to pay them, then the amount of the recovery should be limited by the amount of such debts as well as by the proven probable value of the life of the deceased; and if there are both debts and other assets of the estate, but not sufficient of the latter to fully pay them, then the recovery by the administrator should be limited by0 the amount of the deficit in the assets to pay the debts as well as by the proven value of the life of the deceased. Our statute in its term stands alone, there being, no other statute exactly like it in any of the other states or in England, so that the decisions of the other states are of but little assistance upon the question here involved. It will be found, however, that the following cases bear somewhat upon the question: Coal Co. v. Liimb, 47 Kan. 469; 28 Pac. Rep. 181; North Chicago St. R. Co. v. Brodie, 156 Ill. 317, 40 N. E. Rep. 942; Chicago & North Western R. Y. Co. v. Bayfield, 37 Mich. 205; Chicago & North Western R. R. Co. v. Sweet, Adm’r, 45 Ill. 197; Van Brunt v. Cincinnati, J. & M. R. Co., 78 Mich. 5306, 44 N. W. Rep. 321; Falkenan v. Rowland, Adm’r, 3 Am. Neg. Rep. 530; Anderson v. Chicago, B. & Q. R. Co., 35 Neb. 95, 52 N. W. Rep. 840; Fordyce v. McCants, 51 Ark. 509, 11 S. W. Rep. 694; Chicago Bridge & Iron Co. v. La Mantia, 112 Ill. App. 43, holding that the right of recovery for death by wrongful act, being the creature of statute and unknown to the common law, such statutes are subject to a strict construction. Railway Co. v. Lilly, 90 Tenn. 563, 18 S. W. Rep. 243; Dueber v. Northern Pac. Ry. Co., 100 Fed. Rep. 424. I am aware .that the federal court of appeals of the 5th circuit in the cases of Florida Cent. & P. R. Co. v. Sullivan, 120 Fed. Rep. 799, and Callison v. Brake, 129 Fed. Rep. *476196, has put a different construction upon this statute, but we cannot agree with the conclusions there reached, and in the construction of our own local statute the decisions of the Federal courts, though entitled to due consideration, are not binding upon us. I think that in those cases the court overlooked the leading feature of our statute, that its sole purpose was, not to impose a penalty, but to grant the right to recover compensation only to some person or persons in esse who had suffered pecuniary loss by the death of the deceased, and that its purpose was not for the benefit of the deceased, he being bejí-ond earthly benefit, or of his estate at large, but to relieve those surviving him who had suffered .loss in his death. In those cases, to'o, the court seems not to have had the case of Duval, Receiver, v. Hunt, supra, called to its attention in which the question is fully discussed that the purpose of the statute was compensation and not punishment.
The statutes of some of the other states require the suit in this class of cases to be instituted by an administrator in every instance for the use and benefit of certain named surviving beneficiaries, and in those states if there are none of such surviving beneficiaries in esse, then the recovery by the plaintiff administrator is nominal only. See the Michigan and other cases supra. But under our Florida statute the right of an administrator to sue in any such case is expressly dependent upon the non-existence of any expressly designated surviving beneficiary of the action, and where an administrator sues here under our statute, he sues, not for the use of any surviving beneficiary, but strictly in his capacity as personal representative of the estate of the deceased, and as such his first and chief duty is to the creditors of such estate, if any; and when he has fulfilled his duty to creditors in such cases, then the damage “that he, in his rep*477resentative capacity, has sustained by the death- of his intestate” has been fully satisfied — since he is not authorized by the statute to sue and recover for the benefit of any surviving beneficiary. Heirs at law generally and at large of the deceased are not authorized by the statute ta sue for and recover anything by reason of such wrongful or negligent death, and it would be a highly incongruous interpretation to put upon our statute to say that under it such heirs at law generally will be permitted indirectly through an administrator to- recover in such cases, where they are not permitted by the statute to benefit directly by such an action, and such would be the inevitable result, if an administrator is- permitted to sue for and recover the full value of the probable life accumulations of his intestate, regardless of the fact as to whether or not there was any lawful use to which such recoveiy could be applied by the administrator, such as the satisfaction o-f debts due by his intestate.