(dissenting) — I dissent. The legislature created the right of recovery for a wrongful death afforded by ROW 4.20.010, and in the legislature alone rests the power to determine which classes of persons are entitled to the benefits thereunder. Prior to the adoption of Lord Campbell’s Act, no person, whether wife, husband, child (legitimate or illegitimate), or other relative of the victim of a wrongful killing could recover any damages therefor. Such a cause of action was unknown to the common law, and presently exists in this state only by virtue of the statute.
The majority has given some very cogent reasons why the legislature should amend the statute to give a right of action to the illegitimate children of one wrongfully killed. There are probably cogent reasons why it should not be so amended, including the difficulties that would arise in com-batting false and fraudulent claims of paternity, the putative father being dead. It is unquestionably a matter which the legislature should consider; but, by the same token, it should require the exercise of judicial self-restraint. It is not for the court to crusade against any remaining vestiges of “Victorian or other notions of provincial morality”; the only question is did the legislature intend to grant a cause of action to illegitimate children under the terms of RCW *7234.20.020. Judge Donworth3 has made clear (at least to my satisfaction) that the legislature did not so intend, and I adopt the following portions of an opinion in this case prepared by him before his retirement as my dissent.
This court, in Hedrick v. Ilwaco Ry. & Nav. Co., 4 Wash. 400, 402, 30 Pac. 714 (1892), stated that:
It is settled beyond controversy that, at common law, no civil action could be maintained for damages resulting from the death of a human being. But that defect of the common law has been obviated by statute in the several states analogous to the English statute, commonly known as Lord Campbell’s act (9 and 10 Vic. c. 93), though often varying more or less from its provisions, especially as to the party entitled to maintain the action. The object and purpose of these statutes is to provide a remedy whereby the family or relatives of the deceased, who might naturally have expected maintenance or assistance from the deceased, had he lived, may recover compensation from the wrongdoer commensurate with the loss sustained. Usually the right of action, as in Lord Campbell’s act, is given to the executor or administrator, and the sum recovered inures to the benefit of the particular individuals designated by the statute.
4 Chitty’s Eng. Stat. (6th ed.) 587, Lord Campbell’s Act, 9 & 10 Viet. c. 93 (titled The Fatal Accidents Act, 1846), provided, in part:
Whereas no action at law is now maintainable against a person who by his wrongful act, neglect, or default may have caused the death of another person, and it is oftentimes right and expedient that the wrongdoer in such case should be answerable in damages for the injury so caused by him: Be it therefore enacted, that whensoever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have *724entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.
2. Every such action shall be for the benefit of the wife, husband, parent, and child of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased, and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought;.... (Footnotes omitted.)
Under that enactment, the term “child” included “a child en ventre sa mere (The George and Richard (1871), L. R. 3 A. & E. 466); but not an illegitimate child (Dickinson v. N. E. Rail. Co. (1864), 33 L. J. Ex. 91; Mews Digest, x. 105; Wilson’s Trusts, Re (1865), 35 L. J. Ch. 243; Mews Digest, viii. 232).” See 4 Chitty’s Eng. Stat. (6th ed.), p. 588, footnote (h).
Statutes based on Lord Campbell’s Act have existed in this jurisdiction from its inception. The early history of this state’s legislation on the subject was set forth in Whittlesey v. Seattle, 94 Wash. 645, 647, 163 Pac. 193 (1917), as follows:
The first territorial legislature passed an act giving a right of action to “the widow, or widow or children, or child or children, if no widow, of a man killed in a duel.”[4] The scope of the law was extended, by amend*725ment, in 1875 and in 1909. The act as it now [1917] appears (the act of 1854 in Roman lower case type; the act of 1875 in Roman capitals; and the act of 1909 in italics), is as follows:
“§ 183. When Survivors’ Heirs or Representatives May Sue. — The widow, or widow and her children, or child or children if no widow, of a man killed in a duel, shall have a right of action against the person killing him, and against the seconds and all aiders and abettors. When the Death of a Person Is Caused by the Wrongful Act or Neglect of Another, His Heirs or Personal Representatives May Maintain an Action for Damages Against the Person Causing the Death. If the deceased leave no widow or issue, then his parents, sisters or minor brothers who may be dependent upon him for support and who are resident within the United States at the time of his death, may maintain said action. When the Death of a Person Is Caused by an Injury Received in Falling Through Any Opening or Defective Place in Any Sidewalk, Street, Alley, Square or Wharf, His Heirs or Personal Representatives, or if deceased leaves no widow or issue, then his parents, sisters or minor brothers who may be dependent upon him for support, and roho are resident within the United States at the time of his death, May Maintain an Action for Damages Against the Person Whose Duty It Was, at the Time of the Injury, to Have Kept in Repair Such Sidewalk or Other Place. In Every Such Action the Jury May Give Such Damages, as Under All Circumstances of the Case May to Them Seem Just. [L. ’09, p. 425, § 1; Cf. L. ’54, p. 220, § 496; L. ’75, p. 4, § 4; Cd. ’81, § 8; 2 H. C., § 138.] Rem. Code, § 183.
The court, in Whittlesey, supra, held that, under the language of the statute at that time, no right of action was given in favor of surviving children for the wrongful death of their mother. The legislature quickly responded, and in Laws of 1917, ch. 123, p. 495, enacted the present wrongful-death statute. Sections 1 and 2 of that enactment, now codified as RCW 4.20.010 and 4.20.020, respectively, provide that:
Section 1. When the death of a person is caused by the wrongful act, neglect or default of another his personal representative may maintain an action for damages *726against the person causing the death; and although the death shall have been caused under such circumstances as amount, in law, to a felony.
Sec. 2. Every such action shall be for the benefit of the wife, husband, child or children of the person whose death shall have been so caused. If there be no wife or husband or child or children, such action may be maintained for the benefit of the parents, sisters or minor brothers, who may be dependent upon the deceased person for support, and who are resident within the United States at the time of his death. In every such action the jury may give such damages as, under all circumstances of the case, may to them seem just. (Italics ours.)
No decisions of this court have been found bearing directly on the question presented, i.e. whether an illegitimate child is included within the meaning of the terms “child or children” as used in this statute and, therefore, can participate as a beneficiary in an action for the wrongful death of his father. In other jurisdictions, the almost unanimous weight of authority is that such a child cannot so participate. 72 A.L.R. 2d 1235.
The applicable general rule of statutory construction in this state is that:
Where the word child or children is used in a statute, without qualifying words, and where the context does not show a contrary meaning, the general, if not the universal construction, is that the word child or children does not include an illegitimate child. Peerless Pac. Co. v. Burckhard, 90 Wash. 221, 224, 155 Pac. 1037 (1916).
There being no contrary meaning indicated by the context of RCW 4.20.020, the conclusion seems logically to follow that an illegitimate child is not a child within the purview of the statute, and therefore may not participate as a beneficiary in a wrongful-death action.
Appellant contends, however, that the wrongful-death statute, being remedial in nature, should be construed liberally, citing Gray v. Goodson, 61 Wn.2d 319, 378 P.2d 413 (1963), Johnson v. Ottomeier, 45 Wn.2d 419, 275 P.2d 723 (1954); Cook v. Rafferty, 200 Wash. 234, 93 P.2d 376 (1939).
*727However, as pointed out in Whittlesey v. Seattle, supra at 647:
Some courts have held the Wrongful Death act, which, in some form, is common to all the states (3 Shearman & Redfield on Negligence, Appendix p. 2051 et seq.), to be in derogation of the common law, and therefore, to be construed strictly. Others have held the act to be remedial and have construed it liberally. But, having in mind our own decisions, we agree with Judge Cooley, who suggests the correct rule:
“That such statutes should receive a strict construction in determining the persons or classes of persons who are entitled to their benefit and a liberal construction in applying the statute in their favor.” 1 Cooley, Torts (3d ed.),p. 553.
I can see no alternative, under the existing statutes and rules of construction just cited, but to hold that an illegitimate child may not be included as a beneficiary, under RCW 4.20.020, in a wrongful-death action.
Appellant recognizes that the weight of authority supports our interpretation of the statute, but urges that this court depart from these holdings, and cites as justification for such departure what he terms a trend toward the broader recognition of the rights of an illegitimate child.
In support of his argument that there exists such a trend, appellant cites, from our own jurisdiction, the cases of Wade v. State, 39 Wn.2d 744, 238 P.2d 914 (1951), and State ex rel. Smith v. Superior Court, 23 Wn.2d 357, 161 P.2d 188 (1945), wherein we recognized the right of a father to the custody of his illegitimate child.
Appellant also cites State v. Russell, 68 Wn.2d 748, 415 P.2d 503 (1966), wherein we held that the illegitimacy of a child was no defense in a prosecution of the father, under RCW 26.20.030, for nonsupport, and Peterson v. Eritsland, 69 Wn.2d 588, 419 P.2d 332 (1966), wherein this court sustained a contract between the mother and the putative father of an illegitimate child providing for the support of the child by the father as being' in accord with public policy.
*728Appellant further points out that, under RCW 11.04.081 of the new probate code, a more liberal approach is indicated regarding illegitimate children. Under the former enactment, RCW 11.04.080, the father was required to:
[I]n writing, signed in the presence of a competent witness, have acknowledged himself to be the father of such child.
Under the 1965 enactment, it is sufficient if the father merely acknowledges the child in writing, no witnesses being required.
I note, parenthetically, that the statutes relating to descent and distribution are inapplicable to the question at bar. The written acknowledgment required by RCW 11.04.081 does not make the child legitimate for all purposes, but only “for purposes of intestate succession.” RCW 11.04.081. Hence, even had decedent in this case acknowledged the child in writing, the child still would have been unable to participate as a beneficiary under the wrongful-death statute.
But most importantly, it should be noted that the “liberalization” of the illegitimate child’s rights under the statutes of descent and distribution was effected by legislative enactment. Likewise, it is in the legislative branch of our government that any change in the rights of an illegitimate under the wrongful-death statutes must be initiated.
While it is true that this court, recognizing the injustice of the ancient doctrine of nullius filius has been quick to broaden the rights of illegitimates where permitted to do so by the enactments of the legislature (e.g. Wade v. State, supra; State ex rel. Smith v. Superior Court, supra; State v. Russell, supra, and Peterson v. Eritsland, supra), we have in no case gone beyond a reasonable construction of a particular enactment to attain a result clearly not intended by the legislature. We are bound to continue that policy in the present case.
I have carefully considered the remaining arguments advanced by appellant, the cases cited by him from other jurisdictions, and the legislative enactments relating to *729other areas of law. While I am in sympathy with her position in this case, we should conclude that, under existing law, an illegitimate child may not participate as a beneficiary under RCW 4.20.020. The legislature is the proper forum for any change to be made under that provision.
I would affirm the judgment of the trial court.
Weaver, Neill, and McGovern, JJ., concur with Hill, J.
Judge Charles T. Donworth, while a member of this court, prepared a departmental opinion affirming the trial court in this case. Following his retirement, the case was heard En Banc, and his views did not prevail. The entire dissent, except the words “I dissent” at the beginning and the second paragraph are as written by Judge Donworth, except for changes of “we” to “I” in those places where a change was necessary by reason of the change from an opinion for the court to a dissent, and excepting also the concluding sentence.
4 It should be noted parenthetically that the legislature also enacted in Laws of Wash. Terr. 1854, An Act to Regulate Marriages, § 3, p. 404, a provision that: “All children bom of marriages declared void by the preceding section [i.e. bigamous marriages and cases of consanguinity], and all children born of persons living and cohabiting together, as man and wife, and all children bom out of wedlock whose parents shall intermarry, shall for all purposes be legitimate.” (Italics ours.)
The first and last proviso of that enactment, in substance, survive in the present RCW 26.04.060 and 26.08.060. The second proviso was apparently repealed by Code of 1881, and is not a part of the present law of this state.