(dissenting).
I cannot agree with the majority opinion in this case. Long prior to the adoption of our compensation statute the civil law as well as the common law recognized the rights of posthumous children. We find in our LSA-Civil Code Article 29, under the title “Persons”, and Article 954, under the title “Successions.” Article 29 of the LSA-Civil Code provides: “Children in .the mother’s womb are considered, in whatever relates to themselves, as if they were already born * * Article 954 of the LSA-Civil Code provides: “The child in its mother’s womb is considered as born for all purposes of its own interest * *
Our compensation statute also recognizes this principle of law as evidenced by the provisions of LSA-R.S. 23 :1021 providing': “(3) ‘Child’ or ‘Children’ covers only legitimate children, stepchildren, posthumous children, adopted children, and illegitimate children acknowledged under the provisions of Civil Code Articles 203, 204, and 205.” This provisions deals with those conclusively presumed to be dependent under the law.
Under the provisions of LSA-R.S. 23 :- 1231 and LSA-R.S. 23 :1253 it would appear that the illegitimate posthumous child herein is entitled to cpmpensation because he and his mother were both members of the deceased employee’s family and dependent upon him for support at the time of his death. There was not merely an expectation or hope of future support but the child and its mother were actually receiving support from the deceased at the time of his death.
From my appreciation of the majority opinion it in effect recognizes the fact that if this child had been born at the time of the accident and death, it would have been a member of the family of the deceased and a dependent within the. compensation statute. The majority opinion recognizes the fact that the child was dependent upon the mother for support and that the mother was dependent upon the deceased for support.
At the time of the death of the deceased employee the child was then in embryo, living in his household and supported by him. This, in my opinion, is actual dependency upon the father. I cannot agree that this is merely constructive dependency.
I am firmly of the opinion that the compensation statute, when construed liberally and in accordance with the purpose for which it was enacted, unquestionably grants unto posthumous children, whether legitimate or illegitimate, the same advantages and benefits as if they were already born. Undoubtedly the framers of the compensation statute intended to preserve the rights of both legitimate and illegitimate posthumous children as hereto*111fore recognized by both the civil and common law.
I respectfully dissent.