DISSENTING OPINION.
ROBERTSON, P. J.Plaintiff brought this action in the circuit court alleging that he is the duly appointed, qualified and acting administrator of the estate of Arthur Johnson, deceased, and that the said deceased was at the time of his death above the age of twenty-one years, and left no wife, minor child or minor children, natural born or adopted, surviving him; that the defendant was at all of the times mentioned in the petition a Missouri corporation engaged in mining in Jasper county, Missouri, and that by reason of the negligence of the defendant as therein alleged the said Arthur Johnson received injuries of *152which he died, and prayed judgment for the sum of $7000.
To this petition the defendant filed its general demurrer and alleged as ground'therefor that the petition didvnot state facts sufficient to constitute a cause of action against the defendant. The demurrer was sustained and plaintiff refused to plead further, whereupon the court rendered judgment in favor of the defendant.
Plaintiff perfected his appeal to this court and it is necessary to construe section 5427, Revised Statutes 1909, with reference to the question as to whether or not a cause of action vests in an administrator thereunder, and if so, then the essentials of the petition based on this section.
As the demurrer is general I shall undertake to confine my consideration of the petition to the objections relied upon-by the respondent here as disclosed by the brief filed in its behalf, which are as follows:
“1. The attempt to authorize an administrator to sue without providing the beneficiaries for such a suit coupled with the provision that the jury shall give damages with reference to the necessary injury to survivors who are entitled to sue may be void for uncertainty or by reason of the contradictory provisions which render the* statute unenforceable as written.
“2. There is no presumption of injury to one who is not specifically authorized to sue for the death of another. A petition is not sufficient which does not disclose facts showing how such plaintiff suffered loss by reason of the death.
“The injured survivor sues through the administrator as a trustee rather than as an administrator.
“The use of the word ‘surviving’ in section 5427 to qualify ‘parties who may be entitled to sue’ is inconsistent with the idea that a cause of action .is given to the general estate of the deceased.
*153“A recovery in behalf of the general estate of deceased would inure to the benefit of creditors. The word ‘survivor’ would not include creditors.”
At common law “the death of a human being could not be complained of as an injury.” This condition brought forth the adoption in England in 1846 of what is commonly known as “Lord Campbell’s Act,” under the title of “An act for compensating the families of persons killed by accident.” It provided that the action should be brought in the name of the executor or administrator of the deceased and for the wife, husband, parent and child of the deceased, the jury to find and direct the distribution of the recovery. In 1864 there was an amendment of this act authorizing the beneficiaries to bring the action when there was no executor or administrator to sue. It appears that the holding has been under that act that a new cause of action is created, and otherwise it is materially different from our Damage Act.
It has often been stated by the courts of this country that Lord Campbell’s Act is the initiative of this class of legislation and the suggestion for all subsequent acts of a similar nature, but however that may be the sections of the Missouri statute, out of which the present sections 5425, 5426 and 5427 evolved, were first adopted in 1855 under the title of “An act for the better security of life, property and character,” being sections 2, 3 and 4 (R. S. 1855, pp. 647,-648, 649). Sections 5426 and 5427 are in the exact language of sections 3 and 4 of the original act, except that in section 5427 (originally section 4) the reference to the preceding sections has been changed to conform to the present section numbers, and the amount of recovery allowed has been enlarged from $5000 to $10,000. '
Section 2, now section 5425, when first enacted allowed recovery as follows:
“First, by the husband or wife of the deceased; or, Second, if there be no husband or wife, or he or *154slie fails to sue within six months after such death, then by the minor child or children of the deceased; or. third, if such deceased be a minor and unmarried, then by the father and mother, who may join in the suit, and each shall have an equal interest in the judgment; or, if either of them be dead, then by the survivor.”
In 1885 (Session Laws 1885, pp. 154,155) the Legislature amended the second section so as to include legally adopted children. In 1905 (Session Laws 1905, pp. 135,136,137) the second section of the act (Section 5425) was amended by adding thereto the fourth sub- . division, giving the right of recovery to the administrator or executor of the deceased when the individuals named in the first three subdivisions do not exist, and providing that “the amount recovered shall be distributed according to the laws of descent.” No change was made at that time in the fourth section of the act, now section 5427, and it was thereafter held, in the case of Crohn v. Kansas City Home Telephone Co., 131 Mo. App. 313, 109 S. W. 1068, that as it referred to the old section as it read before the amendment of 1905 no suit could be maintained thereunder by the administrator. The Legislature in 1907 reenacted the fourth section with appropriate reference to the second section, thereby connecting them as they now stand.
That an action based on these provisions of our statute is not a new cause but a transmitted one appears to be settled in this State. [Proctor v. Hannibal & St. Joe R. R. Co., 64 Mo. 112, 121; White v. Maxcy, 64 Mo. 552, 558; Gray v. McDonald, 104 Mo. 303, 311, 16 S. W. 398; Hennessy v. Bavarian Brewing Co., 145 Mo. 104, 112, 46 S. W. 966; Strottman v. Railroad, 211 Mo. 227, 255, 109 S. W. 769.]
It will be observed that section 5427 provides that the damages accruing under section 5426 “shall be sued for and recovered by the same parties and in the same manner as provided in section 5425” and that *155the damages shall he ascertained “with reference to the necessary injury resulting from such death, to the surviving parties who may he entitled to sue,” so that it becomes necessary to consider section 5425 with reference to who are the surviving parties designated therein as being entitled to maintain the suit. It will he seen that there are four classes, three of which are the immediate dependent relatives of the deceased and the fourth is the administrator or executor in the event of the absence of the three previously mentioned classes. Looking at the sections from this position the question first arises as to whether or not an administrator or an executor is a “surviving party” within the meaning of that term as used in section 5427, and in this connection it is observed that the expression “to the surviving parties” is not unqualified nor to be taken in the ordinary and usually accepted application of that expression but it is modified by the words “who may be entitled to sue.” Thus demonstrating, I think, that when administrators and executors were designated as parties who were entitled to sue that then they were within the meaning of section 5427 44 surviving parties” as they are, under section 5425, entitled to sue.
If statutes can be consistently reconciled such construction must be adhered to as will give vitality to every portion thereof and such as will not destroy the legislative intent. It must be remembered that after section 5425 had been amended so as- to authorize administrators and executors to sue under certain contingencies, and after the. Kansas City Court of Appeals had held that the provisions of that section in that respect did not thereby come within the provisions of section 5427, it was amended by the Legislature, as above pointed out, with the evident intent and purpose of extending the right theretofore transmitted to certain parties to the executors and administrators if the parties mentioned in the first three pro*156visions of section 5425 did not exist. This construction gives section 5427 a meaning which, in the case now before ns, would be equivalent to saying that the administrator or executor, as the representative of the estate of the deceased and the person to whom is transmitted the cause of action deceased would have had if he had survived, should be given such damage, not exceeding $10,000, as the jury might deem fair and just with reference to the necessary injury resulting from such death to the administrator or executor as such representative. The administrator or executor is the legal representative of the estate of the deceased and the damages are not allowed to him personally but to him officially as such administrator or executor. The suit is authorized to be brought by him in his official capacity as a representative of the estate and the damages accrue to him by reason of the statute and the position he holds. The laws governing the administration of estates make it his right and duty to reduce to his possession the personal property and assets of the decedent’s estate, including in this instance the value of the right of action transmitted to him by virtue of the statute. [Jacksonville El. Co. v. Bowden, 15 L. R. A. (N. S.) 450, 45 So. (Fla.) 755.]
In construing the effect of the amendment which added the word “administrator” to the Damage Act, I think it is important not to overlook the fact that the first three subdivisions of the second section entirely exhaust the legal dependent classes and I think the Legislature intended exactly what it said, in view of the construction of the Supreme Court of this State that the cause of action theretofore created was a transmitted cause, that the cause of action which might have been maintained by the deceased in the event he had lived should be transmitted to the administrator of his estate, and that the administrator should recover damages, as stated in the case of Illinois Central Railroad Co. v. Barron, 72 U. S. 106, taking into con*157sideration all of tlie circumstances attending tlie deatli, tlie relations between tbe deceased and Ms next of kin, tbe amount of bis property, tbe character of bis business and tbe prospect of increase of wealth likely to accrue to a man of bis age with the business and means which be bad, and also that there was a probability and the chance of business that the deceased’s estate might have decreased rather than have increased, and that, consideration should be given to the possibility and also the probability that the deceased might marry and his property descend into another channel.
The majority opinion in this case, in my judgment, partially recognizes the theory for which I contend in the construction, of this statute and partially repudiates it. Their opinion holds, as I understand it, that the administrator sues in the nature of a trustee of an express trust, representing certain descendants of the deceased, and limiting, in my opinion, the intent and purpose of the statute, and reading therein that the administrator does not represent the estate of the deceased, as is provided for and contemplated under the general administration act, and segregates and eliminates certain kin of the deceased who, with those they include, have no legal claim directly against the deceased had he survived. The first three subdivisions exhaust the entire class of relatives who have any direct legal claim on a deceased and all others can legally derive a pecuniary benefit from the life of the party, during his life, by reason of some voluntary act on his part, and after his death such parties can establish no legal claim on account of an action transmitted except by virtue of the laws of descent and distribution worked out under the laws of administration.
In the first three subdivisions of section 5425 cer-' tain persons are designated who may bring the suit in their own behalf, but when we consider the fourth subdivision we find that the right of action, when the three previous classes are eliminated, vests in the *158administrator or executor; and, since under the statute the administrator and executor can only represent the estate of the deceased, that being their sole duty under the administration laws, I think it would result practically in a judicial repeal of the fourth subdivision of that section to construe it as meaning that the action cannot be maintained for the benefit of the estate. The majority opinions hold that under certain possible contingencies a cause of action may be vested in an administrator for the benefit of individuals not named in the second section.
Entertaining the views as above expressed it necessarily follows that I am of the opinion that it is not essential in a cause of action of the character involved here, any more than fit is necessary in any action by an administrator for the benefit of the estate, to allege the names of the beneficiaries. I think the petition in this case states a cause of action and that the,judgment of the circuit court should be reversed and the cause remanded with directions to set aside its judgment and to overrule the defendant’s demurrer.
In my opinion the case of Murphy v. Railroad, 228 Mo. 56, 87, 128 S. W. 481, concedes the construction of this section of our statute to the effect that the cause of action survives to the administrator as the representative of the estate of the deceased under the conditions existing in this case, because the opinion in that case, although an action under the second section of our Damage Act, discusses the question as to whether or not the said section is entirely penal or partially penal and partially compensatory, and Judge Lamm assumes, I think, that the second section contemplates an element of compensation which is transmitted to the administrator, wherein he .states that, “Then the jury had the facts before them from which they could reasonably infer the worth of the man as a citizen,” which is contrary to the theory on which the majority opinions proceed in the case at bar. The Murphy case was *159an action by an administrator and, while it is true in that case the deceased left an adult son surviving, there was no notice taken of that fact and the court in approving the above statement necessarily presupposed that the cause of action vested in the administrator as such and not by reason or by virtue of the survival of any designated relative, and with this also the majority opinion is in conflict.
In the case of Boyd v. Railroad, 236 Mo. 54, 139 S. W. 561, it is said in construing the second section of the Damage Act relative to the introduction of testimony concerning the probable pecuniary loss involved that, “if the victim left no wife, husband or child, the jury, within the limits of that discretion, ought to be permitted to consider the fact that the amount recovered will go to collateral kindred of the deceased who had no claim upon his bounty or support.” In that case the Supreme Court was considering the question of pecuniary loss and I take it that the statement of that court is directly in point in this case and is ignored by the opinions of the majority, because it wholly explodes the theory of the majority opinions in this case that the amount which may be recovered is confined exclusively to others than collateral kindred.
I deem the opinions of the majority in this case contrary to, the decisions of the Supreme Court in the Murphy and Boyd cases, supra, and request that this case be certified to the Supreme Court.