delivered the opinion of the court.
This action was brought by the plaintiff as the administrator of the estate of John Holm, deceased, to recover damages for the death of said Holm caused by a collision of a work train of the defendant with a push-car upon which the deceased and other employees were riding upon the main line of defendant’s railway, near Skone station, in Silver Bow county. The complaint alleges that at the time of the collision the defendant, a common carrier by railroad, was engaged in interstate commerce between the states of Minnesota, North Dakota, Montana, Idaho, and Washington, and that the deceased was in its employ in such commerce as a section-hand engaged in making certain repairs on the line of its road. It is alleged, also, that Herbert L. Westeott, the engineer in charge of the engine drawing defendant’s train at the time of its collision with the push-car, and the conductor of the train, were employees of the defendant in the conduct of its interstate commerce and were acting within the scope of their employment. There are then set forth in detail the acts of negligence on the part of the defendant and its said employees which caused the collision, the injury, and the subsequent death of the deceased resulting therefrom. The answer tenders issue upon substantially all the material allegations of the complaint.
*284The cause of action alleged is based upon the provisions of the Act of Congress known as the Federal Employer’s Liability Act, approved April 22, 1908 (Act April 22, 1908, Chapter 149, 35 Stat. 65 [U. S. Comp. Stats. Supp. 1911, p. 1322]), as amended by an Act approved April 5, 1910 (Act April 5, 1910, Chapter 143, 36 Stat. 291 [U. S. Comp. Stats. Supp. 1911, p. 1325]). The complaint contains no allegation, nor was any evidence adduced at the trial to show, that the deceased left surviving him anyone falling within the class of persons named in the Act for whose benefit the action provided for therein may be brought. At the close of the evidence, counsel for the defendant moved the court to direct a verdict in its favor, on the ground, among others, that the complaint does not state a cause of action because of its failure to allege the facts referred to above. The court sustained the motion on the ground stated, and directed a verdict and entered judgment accordingly. The appeal is from the judgment. The single question presented for decision is whether the action of the court was correct.
Section 1 of the Act provides: “That every common carrier by railroad while engaging in commerce between any of the several states or territories, or between any of the states and territories, or between the District of Columbia and any of the states or territories, or between the District of Columbia or any of the states or territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment.” The amendatory Act of April 5, 1910, added to this *285Act section 9, as follows: “That any right of action given by this Act to a person suffering injury shall survive to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee, and, if none, then to such employee’s parents; and, if none, then to the next of kin dependent upon such employee; but in such cases there shall be only one recovery for the same injury.”
It may be remarked by way of preface that the right of recovery in this case must be determined by the provisions of the statute quoted, supra,, for it is distinctly alleged that the deceased, when he received the injury of which he died, was employed by the defendant in interstate commerce.
So long as the Congress did not assume to exercise the power [1] vested in it under the commerce clause of the federal Constitution (Constitution, Art. I, see. 8, cl. 3), to prescribe the rules by which the relations of employers and employees engaged in interstate commerce are to be regulated and their respective liabilities and rights are to be determined, it was permissible for the states to enact such legislation upon the subject as their respective legislatures deemed proper. (Sherlock v. Alling, 93 U. S. 99, 23 L. Ed. 819; Smith v. Alabama, 124 U. S. 465, 31 L. Ed. 508, 8 Sup. Ct. Rep. 564; Nashville etc. Ry. Co. v. Alabama, 128 U. S. 96, 32 L. Ed. 352, 9 Sup. Ct. Rep. 28, Reid v. Colorado, 187 U. S. 137, 47 L. Ed. 108, 23 Sup. Ct. Rep. 92; Employers’ Liability Cases, 223 U. S. 1, 56 L. Ed. 327, 32 Sup. Ct. Rep. 169.) This general statement is subject to the limitation that such legislation must not unreasonably interfere with or impede interstate commerce. (State v. Northern Pac. Ry. Co., 36 Mont. 582, 13 Ann Cas. 144, 15 L. R. A., n. s., 134, 93 Pac. 945; Cleveland, C., C. & St. L. Ry. Co. v. Illinois, 177 U. S. 514, 44 L. Ed. 868, 20 Sup. Ct. Rep. 722; see, also, cases cited, supra.) But, when the Congress has assumed to act, “the laws of the states, in so far as they cover the same field, are superseded — that which is not supreme must yield to that which is.” (Employers’ Liability Cases, supra; Gulf, C., C. & S. F. Ry. Co. v. Hefley, 158 U. S. 98, 39 L. Ed. 910, 15 Sup. Ct. Rep. 802; Northern Pac. Ry. Co. v.
*286Washington, 222 U. S. 370, 56 L. Ed. 237, 32 Sup. Ct. Rep. 160; Southern Ry. Co. v. Reid, 222 U. S. 424, 56 L. Ed. 257, 32 Sup. Ct. Rep. 140.) And this is the result whether the federal legislation in terms abrogates that of the state or not. (Reid v. Colorado, supra.)
When we come to examine the provisions of the federal statute, we cannot avoid the conclusion that the purpose of the Congress in enacting it was to comprehend within its provisions the whole subject of the relations of common carriers and their employees engaged in interstate commerce. Section 1 declares the employer to be liable for the death or injury of any employee resulting in whole or in part from the negligence of any of its officers, agents, or other employees, or by reason of any defect due to the employer’s negligence in any of its vehicles or other appliances. The right of action is given to the employee, or, in ease of the death of the employee, to his or her representative for the benefit of the surviving widow or husband and children, and, if none, of the parents, and, if none, of the next, of kin dependent upon such employee. Section 2 extends these provisions to the territories and other possessions of the United States. The remaining sections declare what defenses are available to the employer and provide for the survival of the right of action conferred. Under the provisions of our state legislation (Rev. Codes, secs. 5251, 5252, 6494), the right of action accruing to the injured employee survives in case of his death, and may be prosecuted to judgment by his .representative, whether such employee has commenced action in his lifetime or not. (Billon v. Great Northern Ry. Co., 38 Mont. 485, 100 Pac. 960.) The first section of the federal statute, supra, omits any provision on this subject. Hence, as the Act stood prior to the enactment of section 9, it was held, under the common-law .rule, that, upon the death of the injured employee, the right of action given him died also. (Fulgham v. Midland Valley R. Co. (C. C.), 167 Fed. 660; Walsh v. New York etc. Ry. Co. (C. C.), 173 Fed. 494.) On this subject Judge Lowell in the last case cited said: “This section does not itself provide what causes of *287action survive, but, in the absence of other countervailing statutes, leaves the matter to the common law. In the case at bar, therefore, the state statutes are inapplicable; there is no general federal statute; and the particular statute in question (the Act of 1908) says nothing about survival.” Clearly, section 9 was intended to supply this defect and had no other purpose, because it declares that “any right of action given by this Act to a person suffering injury shall survive to his or her personal representative, for the benefit,” etc., naming the beneficiaries mentioned in section 1. It is to be observed that, whether the [2] action is for a recovery for the death of the employee or for injuries sustained by him for which he might have maintained an action, the person who must bring or continue the action is the same, viz., the personal representative. The beneficiaries in each ease are the same.
This brings us to the inquiry: When the action is brought by the personal representative, is it necessary to allege in the [3] complaint that there are in existence persons answering the description of the beneficiaries named in the statute ? This must be so. The action is statutory. Without the statute, the right to bring it would not exist. The representative is vested with the right to bring it, but only for the benefit of those who are named in the statute. He is thereby made a statutory trustee for them, not for the benefit of the decedent’s estate. The fund recovered goes to the beneficiaries, not by virtue of the law of succession, but because it is given them by the statute. Therefore, if there is no beneficiary within the description of the statute, there is no right of action; for the liability of the defendant is made contingent upon the existence of one or more beneficiaries. If there are none, there is no liability.
Ordinarily, the presumption may be indulged that every decedent leaves heirs; but, by the very terms of the statute, the heirs or next of kin, other than those who stand in the relation of husband, wife, children, or parents, are not beneficiaries unless they were dependent upon the decedent during his lifetime, and there is no presumption that ail or any of the next of kin of a *288decedent were so dependent upon him. The existence of a beneficiary within the description of the statute is a necessary prerequisite — an issuable fact — and therefore must be alleged and proven. So the authorities generally agree. (Webster v. Norwegian Min. Co., 137 Cal. 399, 92 Am. St. Rep. 181, 70 Pac. 276; Citizens’ St. Ry. Co. v. Cooper, 22 Ind. App. 459, 72 Am. St. Rep. 319, 53 N. E. 1092; City of Friend v. Burleigh, 53 Neb. 674, 74 N. W. 50; Westcott v. Central Vt. R. R. Co., 61 Vt. 438, 17 Atl. 745; Vander Wegen v. Gt. Northern Ry. Co., 114 Minn. 118, 130 N. W. 70; 13 Cyc. 341, 342; Thompson on Negligence, see. 7114.)
In Martin v. City of Butte, 34 Mont. 281, 86 Pac. 264, the question presented was whether, in an action brought by the mother, under section 578, Code of Civil Procedure 1895 [Rev. Codes, sec. 6485], which provides: “A father, or in case of his death, or desertion of his family, the mother, may maintain an action for the injury or death of a minor child,” etc. — it is necessary in an action brought by the mother for her to allege that the father is dead or has deserted his family. It was held that it is, under the provisions of the statute, the right of the mother to maintain the action being made contingent upon the death of the father or the desertion of his family. In principle, this decision is in point and conclusive, for, if the right of the mother to maintain the action under that statute is an issuable fact, the right of the plaintiff to maintain this action is also.
Some contention is made in the brief of counsel for plaintiff that the plaintiff had his election to bring the action either under the federal statute or under sections 5251 and 5252 of the Revised Codes, and that, inasmuch as the complaint states a cause of action under the latter, the district court was in error in directing a verdict. It appears, however, that the deceased was injured while employed by the defendant, in interstate commerce. As we have already pointed out above, the Congress having assumed by appropriate legislation to cover the whole subject of the relation of the employer carriers and their employees *289while engaged in interstate commerce, the state statutes are no longer applicable.
The judgment of the district court is affirmed.
Affirmed.
Mr. Justice Holloway concurs. Mr. Justice Smith, being absent, did not hear the argument, and takes no part in the foregoing decision.Behearing denied November 20, 1912.