dissenting.
In my opinion the majority has given too narrow a construction to the provisions of G.S. 97-40 with respect to the application of the general law of intestate succession. G.S. 97-40 provides in part as follows: “ . . . For all such next of kin who are neither wholly nor partially dependent upon the deceased employee and who take under this section, the order of priority among them shall be governed by the general law applicable to the distribution of the personal estate of persons dying intestate. ...” (Emphasis added.) It seems to me that in determining the order of priority in accordance with the laws of intestate succession it is necessary to take into consideration G.S. 31A-2 which specifically applies to the right to a distribution of personal property of persons dying intestate. This latter statute establishes priority between the mother and the father of the deceased employee in this case; it excludes the father thereby giving priority to the mother alone.
I agree with the majority that Conclusion of Law No. 2 by the Industrial Commission, which would bar the father from recovery because he failed to file a claim, is error. The employer having already filed a claim I don’t think it is necessary for the father also to file one. Otherwise I vote to affirm the award of the Industrial Commission.