The court are all of opinion that this action cannot be maintained, and that the demurrer must prevail.
There is great difficulty in ascertaining what cause of action this plaintiff has against the defendants, or how she acquired any. By the common law, and by the laws of this Commonwealth, no action could be brought against the railroad company for negligently causing the death of the plaintiff’s intestate. This is conceded; and the plaintiff rests her case wholly on the statute of New York. If this be a penal statute, it cannot be enforced beyond the territory in and for which it was enacted. If it gives a new and peculiar system of remedy, by which rights of action are transferred from one person to another in a mode which the common law does not recognize, and which is not in conformity with the laws or practice of this Commonwealth, there is an equally insuperable objection to pursuing such a remedy in our courts.
The plaintiff’s counsel, in their ingenious and impressive argument, being apparently fully aware of the difficulties of the case, have placed their claim to recover upon the ground that the statute of New York vested a right of property in the widow and her children at the moment of the husband’s death, and designated a trustee to receive and enforce this right, whose capacity to sue will be sustained in any forum.
The right of property which the statute defines is of a very peculiar nature. In the first place, the act or default which caused the death must be such as would, if death had not *90ensued, have entitled the party injured to an action to recover damages in respect thereof. This the statute makes requisite to give the personal representative an action for damages, and it would thus seem that the action was designed to be for the purpose of compensating the injury to the deceased. But we next find that the compensation is not to go to the personal representative of the deceased, to be disposed of as other property or rights of property belonging to the deceased. It is not to be applied in payment of his debts, nor is it subject to the provisions of his will. It is not the injury to the deceased which is to be estimated at all. The whole amount is not to exceed five thousand dollars; and, with that limitation, the jury may give such damages as they shall deem a fair and just compensation, with reference to the pecuniary injuries resulting from such death, to the wife and next of kin of such deceased person. The damages, therefore, are to be for the pecuniary injuries to the wife and next of kin. But, when the pecuniary interests of the wife and next of kin in the death have been ascertained, the sum recovered on this basis is not to be paid over to these several parties in proportion to their respective pecuniary interests thus determined or regarded, but is to be distributed to them in the proportion provided by laws for the distribution of intestate personal property. If we take some one of the next of kin, therefore, it may follow that, because the defendants caused by negligence the death of the plaintiff’s intestate, this person may recover by virtue of the statute, through the plaintiff as administratrix, a sum of money which has no relation to the extent of the injury done to the deceased; and no relation to the extent of the injury done to the person who is to receive it. If the jury should deem three thousand dollars a fair and just compensation for the pecuniary injury resulting to the wife, and one thousand dollars to one of the next of kin, and five hundred dollars to another, and should be of opinion that there was no pecuniary injury to the others of the next of kin, from the death, they would assess as damages four thousand five hundred dollars • and this the plaintiff would be bound to distribute according' te the statute of distributions, which makes no reference to the *91pecuniary interest of the distributee in the death. In the language of Mr. Justice Denio, “ these statutes have introduced a principle wholly unknown to the common law, namely, that the value of a man’s life to his wife or next of bin constitutes, with a certain limitation as to amount, a part of his estate, which he leaves behind him to be administered by his personal representatives;” and “though the action can be maintained only in the cases in which it could have been brought by the deceased if he had survived, the damages nevertheless are given upon different principles, and for different causes.” Whitford v. Panama Railroad Co. 23 N. Y. 468.
If we understand that the limitation of the defendants’ responsibility to cases in which the deceased would have had a right of action if he had survived, is not intended to make his right of action survive to his representatives, but is only meant to define and describe the cases in which the right of property and of action is recognized in the widow or next of kin, we have still the question to meet, How can that be regarded as any thing else than a statute penalty, which the personal representative of the deceased is to recover by an action; which is limited in amount, although that amount may be much less than the extent of the injury sustained by those whose loss is to be estimated in computing it; and which is to be distributed among the parties entitled to receive it, not in proportion to the injuries which they have respectively sustained, but in proportion to the shares to which they would be severally entitled in the distribution of an intestate estate ? We do not readily find a satisfactory answer to this question. But a complete and decisive objection to the maintenance of o the action by this plaintiff remains.
The plaintiff is the administratrix appointed under the law of Massachusetts Her right to sue in this Commonwealth, in her representative capacity, is upon causes of action which accrued to her intestate, or which grow out of his rights of property, or those of his creditors. The remedy which the statute of New York gives to the personal representatives of the deceased, as trustees of a right of property in the widow and *92next of kin, is not of such a nature that it can be imparted to a Massachusetts executor or administrator, virtute officii, so as tc give him the right to sue in our courts, and to transmit the right of action from one person to another in connection with the representation of the deceased. The only construction which the statute can receive is, that it confers certain new and peculiar powers upon the personal representative in New York. The administrator in Massachusetts is in privity with the New York administrator only to the extent which our laws recognize. A succession in the right of action, not existing by the common law, cannot be prescribed by the laws of one state to the tribunals of another. It is upon this principle that the negotiability of contracts, and whether an assignee can maintain an action in his own name, is held to be determined by the lex fori, and not by the lex loci contractus; a matter not of right, but of remedy. McRae v. Mattoon, 10 Pick. 49. Warren v. Copelin, 4 Met. 594. Foss v. Nutting, 14 Gray, 484, and cases cited.
For the reason, therefore, that the right of action which the New York statute gives to the personal representative of the deceased in that state is not a right of property passing as assets of the deceased, but is a specific power to sue created by their local law, it does not pass to the plaintiff as administratrix in Massachusetts, and this suit cannot be maintained by her.
Demurrer sustained. *
The case of Woodard v. Michigan Southern and Northern Indiana Railroad Company, 10 Ohio State, 121, which was. an action on the statute of Illinois by an administrator appointed in Ohio, was decided on grounds similar to those of the foregoing decision ; though it is to be observed that in that case the deceased was a servant of the railroad company, and the collision which killed him was caused by the negligence of other servants of the same, and there was no allegation that under such circumstances an action would lie in Illinois, the statute giving the action only when the default, &c. “ is such as would, if death had not ensued, have entitled the party injured to maintain an ac> non,” &<;.