DISSENTING OPINION.
Wilkes, J.I cannot concur in the majority opinion. I think the suit is properly brought in the name of the administrator of the deceased wife, but I cannot agree that the husband is entitled to the proceeds, either jure mariti or under the statute. Not jwre mariti, because, without the aid of the statute, the husband has no right of recovery in case of the wife’s death, whatever may be his rights for an injury to her not resulting in death; and not under the statute, because the statute does not so provide. I do not controvert the holding in Bream v. Brown, 5 Cold., 169, in which it was held that • the wife is a ‘ ‘ person ’ ’ within the meaning of the statutes providing that actions shall not abate by the death of the ‘£ person ’ ’ who dies from injuries received, and I am of opinion a right of action in case of her death does exist.
In that case the suit was brought in the name of her husband, as administrator, for the benefit of himself and the minor children of his deceased wife, and it was held that the action was properly brought by the administrator, but the Court did not pass upon the question as to who the proceeds should *676go to. It did not, however, hold that it was improper to include the children as beneficiaries of the recovery.
In Trafford v. Adams Express Co., it is said the question of who is entitled to the proceeds of such recovery was settled. In regard to this case, it is but true to say that it does not seem to me to rest on any satisfactory basis. The reasoning is all in one direction, while the decision is in another and different direction. In that case there were no children. The suit was brought in the name of the husband as administrator. The contest over the proceeds was between the husband and the nephews and nieces of the wife as her next of kin. The decision was also prior to the Act of 1883, which gives damages not only for mental and physical suffering, loss of time and necessary expenses resulting to the deceased, but also damages resulting to the parties for whose use and benefit the right of action survived from the death consequent upon the injury received.
Coming to the consideration of the statute, it is clear that the right to bring the action at all depends on the statute, and beyond the statute no such right exists. Loague v. Railroad, 7 Pick., 458. It is also clear that, the right being given by the statute and the remedy provided in the same Act, the right can be pursued in no other way. Flatly v. Railroad, 9 Heis., 230; Loague v. Railroad, 7 Pick., 461; Railway v. Lillie, 6 Pick., 565.
*677The Act, Code §3130 (M. & V.), prescribes that the right of action shall pass to the widow, and in case there is no widow, to the children, or to the personal representatives for the benefit of the widow or next of . kin; and § 3133 provides that the damages shall go to the widow, or next of kin, free from the claims of creditors, to be distributed as personal property.
In order to escape what appears to be, and no doubt was, an omission on the part of the Legislature to provide for the case when the wife dies, this Court has been disposed to hold that the word ‘ ‘ widow ’ ’ means also ‘ ‘ widower, ’ ’ and that both are intended to be provided for. It is probable this ought to be the law, but I think it cannot be based upon the words used in the Act. If it could, and the ‘ ‘ widower ’ ’ would have the same rights as the “widow” under the statute, then he must take it subject to the same limitations. If the widow takes, she takes for herself and his children. If the widower takes, he should take for himself and her children. But I think the Legislature has simply failed to make provision, when the wife is killed, for any recovery for the husband, and that the recovery in such case goes to the wife’s children and not to the husband, and certainly this would be so as to the damages recoverable from the death of the wife, as contradistinguished from those accruing to the husband and wife jointly, if she had not died.
While I think the husband may sue as adminis*678trator, he cannot take the recovery jure mariti, nor as next of kin, nor as widow, nor as widower, and it should go to the children. I cannot see that, under the statute, the husband’s right of action is saved, but, if it. is, it is not the right of action for the death of his wife, for' that never existed at common law, and could not, therefore, survive, and, in any event, the recovery should go to her children when she has children. Railroad v. Pitt, 7 Pick., 93; Lillie v. Railroad, 6 Pick., 563.