OPINION
BIVINS, Judge.From a judgment awarding a minor dependent weekly benefits under the Workmen’s Compensation Act, defendants appeal raising four issues, each of which they claim require reversal. Because it is dis-positive of this appeal, we address only one issue: what is the domicile of a child not yet born at the time of his parent’s injury under the Workmen’s Compensation Act? We hold that the child’s domicile is the domicile of the parent with whom he resides at the time of his birth. Because that domicile was outside the United States, we reverse.
On March 19, 1981, while employed as a ranch hand by defendant Snyder Ranch, Guillermo Ortega Ponce and a co-worker were instructed by the foreman’s son to leave their duties hoeing weeds and assist in taking down an electric fence. The two men proceeded to the site of the fence while the foreman’s son went to obtain wheels for rolling the wire. While waiting at the site the two workers crossed a dirt road and attempted to “shake” a rabbit out of a thirty-foot movable aluminum irrigation pipe. They lifted the pipe and in doing so it came into contact with a highline electric wire. Mr. Ponce died of electrocution.1
At the time of the accident Mr. Ponce lived on the Snyder Ranch with Marcelina Gomez Herrera who, although not married to him, was pregnant with his child. Following the accidental death of Mr. Ponce, Ms. Herrera returned to Mexico where she gave birth on October 4, 1981, to Guillermo Ortega Gomez, the minor dependent making the claim in this case.
NMSA 1978, Section 52-1-52 provides in part:
No claim or judgment for compensation, under this act [citation omitted] shall accrue to or be recovered by relatives or dependents not residents of the United States at the time of the injury of such workman.
The trial court found:
19.
At the time of Guillermo Ortega Ponce’s death, his son, Guillermo Ortega Gomez, was en ventre sa mere.
20.
At the time of Guillermo Ortega Ponce’s death, Guillermo Ortega Gomez’s mother, Marcelina Gomez Herrera, was residing on the Snyder Ranches with Guillermo Ortega Ponce as his dependent but was not his wife nor is she his widow or related to him under New Mexico law.
21.
At the time of Guillermo Ortega Ponce’s death, Guillermo Ortega Gomez was residing en ventre sa mere on the Snyder Ranches.
22.
At the time of Guillermo Ortega Ponce’s death, Guillermo Ortega Gomez was his dependent.
Ms. Herrera testified that Mr. Ponce fathered the child, and there was no evidence to the contrary.
In Neeley v. Union Potash & Chemical Co., 47 N.M. 100, 137 P.2d 312 (1943), the Supreme Court affirmed a judgment allowing a widow to recover 45% of the worker’s average weekly wages from the date of his accidental death, with the condition that if the child en ventre sa mere at the date of the accident should be born dead or die after birth, it would reduce the amount to 40%. The court expressly refrained from deciding whether the unborn child has a direct property right from the date of the accident until birth. The Court decided the case on the basis that the widow was entitled to the additional 5% for the unborn child from the date of accident, subject to reduction by that amount if the child was born dead or died after birth.
■ Here we have no widow entitled to benefits. The trial court found that under New Mexico law Ms. Herrera was entitled to no benefits, and no appeal was taken from that ruling.
The rationale of Neeley would clearly suggest that a child en ventre sa mere, if born alive, would have a direct property interest dating back to the time of the accidental death; however, we need not decide that question here. The residency statute bars recovery.
A minor at the time of birth has the same domicile as the parent with whom he lives. See Worland v. Worland, 89 N.M. 291, 551 P.2d 981 (1976); Restatement (Second) of Conflict of Laws § 22, § 14 (1971). Section 22 comment c, states: “At birth an illegitimate child takes the domicil his mother has at the time as his domicil of origin.” (Emphasis added.) Section 14, in defining “Domicil of Origin”, provides in part:
(1) The domicil of origin is the domicil which a person has at birth.
(2) * * * If the child is not the legitimate child of its father, or is born after the father’s death, its domicil at birth is the domicil of its mother at that time.
It is undisputed that the mother’s domicile at the time of her child’s birth was in Mexico. Thus, that was her child’s domicile. He could have no domicile before birth. His domicile at birth relates back to the time of the injury.
In Gallup American Coal Co. v. Lira, 39 N.M. 496, 50 P.2d 430 (1935), the Supreme Court, in construing the legislative intent of the statute in question (then Comp.St.1929, § 156-120), said:
The Legislature evidently intended that dependents of alien laborers who had never lived in the United States or, who having been domiciled here, had permanently left this country, should not be beneficiaries under this act; but that those dependents who are domiciled in the United States should be beneficiaries thereunder.
Although this case could be construed to equate “residence” with “domicile”, we need not resolve the question at this time. The child’s claim fails no matter which requirement we apply.
Because the dependent minor was not a resident or a domiciliary of the United States at the time of the injury, he has no claim under the Workmen’s Compensation Act and may not recover benefits. See Pedrazza v. Sid Fleming Con., Inc., 94 N.M. 59, 607 P.2d 597 (1980).
The judgment is set aside with instructions to dismiss plaintiff’s complaint with prejudice.
IT IS SO ORDERED.
LOPEZ, J., concurs. WALTERS, C.J., dissents.. For a case with almost identical facts, see Ranger Ins. Co. v. Valerio, 553 S.W.2d 682 (Tex. Civ.App.1977).