dissenting.
I am unable to agree with the majority. The opinion applies what the majority think ought to be the law rather than what is the law. If we had in Virginia what is generally known as third party procedure such as is found in Federal rules of civil procedure the opinion would be correct, but until we adopt third party procedure I think it is error to permit those who are strangers to the original action to file cross-claims under section 6097a. I am informed that at the 1948 session of the General Assembly an effort was made to enact a statute authorizing third party practice but it failed.
*796The vital question is, can the statutory beneficiaries defined in Code, section 5788, through the personal representatives, file as a cross-claim to the action brought by the plaintiffs, a claim for the wrongful death of the decedent?
Code, section 6097a, provides, among other things, that “in any action at law or warrant for a small claim for a tort a defendant may file in writing a cross-claim averring that the plaintiff is liable for a tort to the defendant for damages arising out of the same transaction. * * *”
Code, section 5786, creates a right of action for the wrongful death of another, and section 5787 provides how and when the action may be brought and how the damages are awarded. Section 5788 designates the parties to whom the amount recovered shall be paid. The pertinent language of this section is as follows: “The verdict, if there be one, and the judgment of the court shall * * * specify the amount or the proportion to be received by each of the beneficiaries * * *. The amount recovered in any such action shall be paid to the personal representative * * # and shall be distributed by such personal representative to the surviving wife, husband, child, and grandchild of the decedent # # # and shall be free from all debts and liabilities of the deceased; but if there be no such wife, husband, child, # # # the amount so received shall be assets in the hands of the personal representative to be disposed of according to law * *
The statutory beneficiaries under section 5788 are the real parties in interest to the present cross-claim. In the brief they are designated to be the widow and children of the deceased. This is not denied. For the purpose of instituting an action for the wrongful death of the decedent under section 5788, the personal representatives are only nominal parties. Here they had no interest in the cross-claim other than as trustees to distribute to the beneficiaries any recovery which might have been had on the cross-claim. They acted not in their general capacity as personal representatives but in a special capacity.
A mere reading of the statutes commonly designated as *797the “death by wrongful act” statutes (sections 5786 to 5790, inclusive), makes it plain that the General Assembly intended to create a new and distinct right of action for the benefit of those persons identified and named in section 5788, to compensate them for the loss sustained by them by reason of the death of their kinsman. ' The only service to be performed by the personal representative in such case is to bring the action in his name. He has no authority to administer any recovery which may be had and it does not become a part of the assets of the estate of the decedent as long as there are those whom the statute says are entitled to it.
In Anderson v. Hygeia Hotel Co., 92 Va. 687, 24 S. E. 269, the court analyzed the statutes thus: “The Act requires the suit to be brought by and in the name of the personal representative, but he by no means sues in his general right of personal representative. He sues wholly by virtue of the statute and in respect of a different right. His suit proceeds on different principles. He sues not for the benefit of the estate, but primarily and substantially as trustee for certain particular kindred of the deceased who are designated in the statute.”
In Withrow v. Edwards, 181 Va. 344, 25 S. E. (2d) 343, Mr. Justice Hudgins, now Mr. Chief Justice Hudgins, at page 354, said: “It (the statute) creates the right of action, limits the amount recoverable, and names the classes of beneficiaries who may be entitled to share in the amount recovered. * * * It is clear that the primary object of the statute * * * is to compensate the family of the deceased and not to benefit his creditors. (Richmond, etc., R. Co. v. Martin, 102 Va. 201, 45 S. E. 894.) * * * If the distributees named in the statute of descents and distribution are different from the persons entitled to the proceeds named in Code, sec. 5788, the provisions of the latter control.” On the other hand, if the beneficiaries named in the statute are the same as those who take under the statute of descents and distribution, their claims under section 5788 are not to be mitigated by what they may inherit.
*798The wrongdoer is required to contribute only to those named in the statute. He is not required to contribute to the decedent’s estate. Porter v. Virginia Elec., etc., Co., 183 Va. 108, 31 S. E. (2d) 337.
See also, Brammer v. Norfolk, etc., R. Co., 107 Va. 206, 57 S. E. 593, and Virginia Iron, etc., Co. v. Odle, 128 Va. 280, 105 S. E. 107.
I repeat that the real parties for whom the personal representatives act are those named in the statute and not those who are entitled to the estate. The statutory beneficiaries, not being parties defendant to the plaintiffs’ action, have no right under Code, section 6097a, to file a cross-claim for damages for the wrongful death of the decedent. Our statute, section 6097a, does not contemplate a cross-claim for wrongful death in such case. It contemplates a cross-claim only by a defendant. The statutory beneficiaries are not and could not be defendants to the action of the plaintiffs with whom they have no connection and to whom they are not obligated.
If the situation were reversed and the personal representatives were bringing an action against a defendant for wrongful death, it is clear that such a defendant would have no right to file a cross-claim for property damage.
In 16 Am. Jur., Death, sec. 280, this rule is stated: “In an action to recover damages for a wrongful death caused by negligence, damages to property, of the defendant alleged to have resulted from the negligence of the deceased may not be claimed as a set-off.”
The original action brought by the plaintiffs against the personal representatives was against them in their general capacity as personal representatives of the estate. If the plaintiffs are successful, the damages they recover will be paid from the estate. The personal representatives, acting under the authority of sections 5786 to 5790, inclusive, are limited to bringing an action for the death of their decedent. If damages were recovered for the benefit of the widow and children on the cross-claim they “shall be free from all debts” of the decedent. (Code, sec. 5788.)
*799It is argued by the majority that if there should be two trials instead of one the plaintiff might recover in one while the defendants recover in the other—“a palpable miscarriage of justice”. Like situations have arisen in Virginia. In the same accident where two are injured, one sometimes recovers while the other does not. See Yorke v. Cottle, 173 Va. 372, 4 S. E. (2d) 372, and Yorke v. Maynard, 173 Va. 183, 3 S. E. (2d) 366.
Such a result is evidence of just another weakness in the law or its administration which wise men in the past have been unable to correct.
I am not unmindful of the policy of the law, which is that the adjustment of a defendant’s demand by cross-claim rather than by an independent suit is favored and encouraged as serving to avoid circuity of action, inconvenience, and the consumption of the time of the court. The tendency of the law is toward a liberal extension of the right to file cross-claims, but here our statute, section 6097a, grants no right to the widow and children of Hoffman to file a cross-claim against the plaintiffs.
There is no privity or community of interest between the plaintiff in the original action and the statutory beneficiaries. They are strangers. Their cross-claim is not germane to the claim of the plaintiffs nor is it founded upon or connected with the subject matter of the plaintiffs’ claim. A decision on the issues to be raised on the cross-claim is not essential to a complete and full determination of the cause of action alleged by the plaintiffs. Certainly if the cross-claim had not been filed a decision of the plaintiffs’ claim could not have been successfully urged as res adjudicata to a new and subsequent action brought for the statutory beneficiaries for the wrongful death. However, the effect of the holding of the majority is to the contrary. So now in all original actions of this nature, if there is an action for wrongful death, it must be asserted in a cross-claim or it might be barred by a plea of res adjudicata.
A cross-claim or counter-claim was not known to the common law. It is exclusively statutory. It must be be*800tween the same parties and between them in the same capacity. 47 Am. Jur., Set-Off and Counterclaim, sec. 48.
“Parties in interest and not mere nominal parties are usually regarded by the courts in determining the question as to mutuality of demands and in equity or at law, the nominal difference of parties plaintiff, where the litigation, in reality, is for the sole use and benefit of a party not named in the complaint, but whose title is shown to be absolute, is not a bar which prevents the other party from maintaining his claim in set-off against the real party, and it has been held that set-off can be made only against the real party in interest.” 47 Am. Jur., Set-Off and Counterclaim, sec. 50.
The real parties in interest in the cross-claim filed in this case are the widow and children of the deceased, but they are not parties defendant to the action of the plaintiffs and therefore, under section 6097a, are not entitled to file a cross-claim in these proceedings. For this reason I think the trial court was correct in its ruling that the cross-claim be dismissed.
Eggleston, J., concurs in this dissent.