I concur in the conclusion that the judgment of the trial court should be affirmed, but desire to give an additional reason for this view.
It is the contention of appellants that the orders of the trial court approving the settlement of the claims of the estates against the appellee, the Central Arizona Light Power Company, for the damages suffered by these estates as a result of the deaths of the decedents were void on their face, because they state that the appellant admitted liability in the sum of $8,500 and agreed with the administratrix to discharge it by paying $4,044.25 in cash and by purchasing an annuity policy for $4,455.75 for the children of the deceased with the money contributed by the public for their benefit and delivering it to her as administratrix of the estates; that this was done, and that thereafter the annuity policy was treated as a part of the estate, the fees of the administratrix *Page 456 and her attorney being paid upon a valuation of $8,500, more than one-half of which was the money belonging to the children.
If these allegations are true, and they must be so regarded in disposing of the demurrer, it is clear that the court should not have entered the orders, but it is not necessary in this action to determine whether they were merely erroneous or void on their face, because in neither instance could the appellants take advantage of them. The right to damages for wrongful death rests in the estate and an action to recover them can be brought only by the personal representative of the deceased, unless the death be that of a child whose parent or parents are living or of a ward. In the first instance the father, or in case of his death or desertion of his family, the mother, and in the second, the guardian, may bring the action. Sections 944 and 945, Revised Code of 1928; Tucson Gas, E.L. P. Co. v. Doe, 28 Ariz. 140,236 P. 464; Estate of Lister, 22 Ariz. 185, 195 P. 1113. At no time did the appellants have a cause of action against appellee for the death of the decedents, and this being true, it was as a matter of law wholly immaterial to them that the Central Arizona Light Power Company and the administratrix by fraud and collusion extinguished the causes of action which the estates had against the company for these deaths. The fact that appellants were the sole heirs of the estates did not make, or even permit them to become, parties plaintiff in an action for damages for the wrongful death of the decedents, and this being true it necessarily follows that they could not sue for damages the estates may have suffered through the extinguishment in any way of this right of action. The right to sue not being in them, they could have had no interest in its extinguishment. The law of this state does not regard the heirs of *Page 457 an estate, but its representative, as the party in interest in actions of this character. The effect of section 945, supra, is to place those who inherit an estate consisting of a right of action for wrongful death in a different position from that of heirs generally, and inasmuch as the only person who could have brought such an action was the personal representative of the deceased and the administration of the estate had long since closed, the only course appellants could have properly pursued at that time was to procure the appointment of a representative of the estate, an administrator de bonis non. If the Lord Campbell's Act of this state were the same as that of California, which provides that the action may be brought by the heirs or the personal representatives of the deceased, the appellants could have brought the action. Section 377, Calif. Code of Civil Procedure.
However, even though the appellants were not the proper parties in an action, either for damages for the wrongful deaths or for damages the estates may have suffered as the result of an extinguishment of the former through collusive and fraudulent conduct, there is nothing now, nor will there be during the period of limitation which begins to run when the appellants reach the age of twenty-one years, to prevent them from recovering the money contributed to them by the people and which, according to the allegations of the complaint, was delivered to the administratrix in discharge of a part of the Central Arizona Light Power Company's admitted liability of $8,500. This fund belonged to the children and could in no way have become an asset of the estates of decedents, but if, notwithstanding this, it was paid to the administratrix in discharge of the $8,500 pro tanto and later distributed to the appellants as heirs of the estates, it was diverted from the *Page 458 purpose for which it was contributed and can be recovered by its owners, the appellants, in a proper action.