Concurring Opinion by
Montgomery, J.:I respectfully concur in the action of the majority in affirming the lower court in this case since it is my opinion that the plain wording of the wrongful death act, Act of April 26, 1855, P. L. 309, §1, as amended, 12 P.S. §1602, on the distribution to be made on recoveries thereunder is not subject to judicial change but that any such change as requested by the appellant in this case must be made by the legislative branch of our government.
The facts of the case are set forth in the dissenting opinion to be filed by my colleague, Hon. J. Sydney Hoffman, who has therein afforded us an ardent and characteristically brilliant plea for us to be more activist in interpreting the wrongful death act. Although it is unnecessary for me at this time to express an opinion on the merits of the appellant’s contention, it is to be noted that Judge Hoffman’s opinion reflects a jurisprudential principle which has gained considerable respectability in the present age. The long history of the wrongful death act, which has spanned more than a century, demonstrates considerable movement toward and judicial enactment of that philosophy.
It is remarkable that, the wrongful death act having-existed for so long and endured considerable judicial interpretation, the legislature has remained somnolent throughout its history. Originally, the legislature did not provide for the method by which damages were to be computed in a wrongful death case. That legislative failure to act is one of the causes leading to the present appeal and to the anomalous situation referred to in Judge Hoffman’s opinion, whereby damages recovered in wrongful death cases are not distributed in *94proportion to the “loss” suffered by the individual survivors of the deceased. However, the anomaly is of the appellate courts’ own making; for, as the act was subjected to constant judicial interpretation, our jurists continually veered away from the jurisprudential theories outlined in the first and leading case interpreting the act, The North Pennsylvania Railroad Company v. Robinson, 44 Pa. 175, 178 (1863), where the Court, enunciating the purpose of the act to be to discover the value of the life lost rather than to compensate the survivors of the deceased, stated: “The recovery is for the benefit of all the children, for the statute provides that the money so recovered shall be distributed in the same proportion amongst them, as in the case of the estate of an intestate. This answers the objection made, that none may recover but such of the children as are injured by the death. The law gives it to them all in equal proportions, and if we are careful to remember that the value of the life lost, to be estimated by a pecuniary standard, is what is to be recovered for, we shall fall into no such error as in supposing that none but those who can show some actual damage, are entitled to recover. If such were to be the rule, we should have the indecent spectacle of an investigation whether the loss of a parent or child was or was not in fact an advantage rather than a loss; for certainly, if none be allowed to recover but such as are able to show a pecuniary loss, the defendants would, with great apparent reason at least, be entitled to claim the right to prove the contrary, and to show peradventure that, by the death, the party suing may have succeeded to an estate, or, on the other hand, had been relieved from the burthen of maintenance. In case of the death of aged persons or helpless infants, we might expect in the application of such a rule to have the point discussed whether the death was an ac*95tual loss or gain. The law means not to open the door to anything so shocking. It treats the value of the life lost as a species of property, and gives it, where children sue, to them in the same proportions as the personal estate of an intestate is distributed. This is what the act says and means, and hence the propriety of joining all the children as plaintiffs.”
It can be seen at once from the above excerpted language that the Court was interpreting the death act as allowing a valuation of the life of the deceased to be made, thereby creating an estate which could be passed on by inheritance. More close in time to the common law, with its absence of any right whatever being recognized by the State for damages recoverable for tortious death, it is understandable that the society of a century ago, a.s represented in both the legislative and judicial branches of our government, would also draw upon the concepts of the feudal system, with its ideas of property, and the reluctantly granted right of inheritance given by the State to its citizens, rather than the fully developed concept of the present day, that the State is hut the arbiter between the clashing wills of pxlvate citizens and is not only the supreme, if sometimes benevolent, sovereign power.
Nevertheless, the legislature gave much when it enacted the wrongful death act. However, soon the judiciary began to cut down that broad gift. Through judicial fiat, the provable damages became, not what estate the deceased was likely to create in his lifetime (including the amounts given to Ms dependents) hut the amount that the surviving eligible dependents could prove that they had lost. Having decided to so limit the total damages, our predecessor jurists easily strayed even farther from the letter of the act by limiting distribution of the damages to classes of relatives among which were eligible takers, as in the two cases relied *96on by Judge Hoffman, Lehigh Iron Company v. Rupp, 100 Pa. 95 (1882), and Lewis v. Hunlock’s Creek & Muhlenburg Turnpike Company, 203 Pa. 511, 53 A. 349 (1902). Nor is it difficult to understand the feelings of appellant, reflecting as she does the philosophy prevailing at this time, that she is entitled to the full amount of the recovery in this case, and that the time is ripe to appeal for a final judicial change in the law.
On the basis of the above reasoning, I cannot agree with the view expressed in 3 Goodrich-Amram §2201-38, that the act was “inexpertly drawn”; it is inequitable, or one should admit even for purposes of discussion “the social desirability of an anti-windfall construction of the act,” at least insofar as the present action now before us is concerned. Any such criticism of the act should be made to the General Assembly, which may make such changes as would reflect the change in philosophy upon which this appeal is based.
Cercone, J., joins in this concurring opinion.