By order of the court Merrial A. Kyler, guardian ad litem of five alleged minor illegitimate children of the decedent, was permitted to intervene in the above entitled matter as party plaintiff. Such intervention was permitted subject to motion for dismissal of the complaint either before or during trial on grounds that the said minors are not proper parties plaintiff nor do they have a cause of action. It is the motion which is now being determined. See pretrial order dated September 4, 1958, and supplement thereto dated January 16, 1959.
Plaintiff Margaret Hammond, wife of the deceased, sues the defendant Pennsylvania Railroad Co. as administratrix ad prosequendum and general administratrix under the wrongful death statute of our State, N.J.S. 2 A:31-1 et seq. At the same time and in the same capacities she sues the New York and Long Branch Railroad Co. under the Federal Employers' Liability Act, 45 U.S.C.A. , § 51 et seq.
It is admitted by the attorney representing the said guardian ad litem that the illegitimate children are not
proper parties plaintiff in the suit against the Pennsylvania Railroad Co. by virtue of the provisions of the wrongful death statute. There remains, therefore, the question as to whether the said children are proper parties plaintiff in the suit against the defendant New York and Long Branch Railroad Co. under the provisions of 45 U.S.C.A. , § 51 et seq.
A determination of this question requires a construction of the word "children" as used in 45 U.S.C.A. , § 51, which reads as follows:
"Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none * * * then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. * * *" (Italics mine)
In Seaboard Air Line Ry. v. Kenney , 240 U.S. 489, 36 S. Ct. 458, 60 L. Ed. 762 (1916), plaintiff's intestate was killed in North Carolina on an interstate freight train and suit was brought for the next of kin who were three minor children of the mother of the deceased, she having died before the accident. He was an illegitimate child. The suit was instituted in accordance with the provisions of the Federal Employers' Liability Act (45 U.S.C.A. , § 51 et seq., supra). The court held that who were the next of kin as used in 45 U.S.C.A. , § 51 et seq., supra , must be determined by the legislation of the various states to whose authority that subject is normally committed. See also Poff v. Pennsylvania Railroad Co. , 327 U.S. 399, 66 S. Ct. 603, 90 L. Ed. 749 (1946), in which it was held that the
term "next of kin" is to be determined by state law, citing Seaboard Air Line Ry. v. Kenney, supra. See also De Sylva v. Ballentine , 351 U.S. 570, 76 S. Ct. 974, 100 L. Ed. 1415 (1956).
Plainly the statute contains no definition of the word "children." Speaking generally, under our dual system of government who are embraced within the words "child" or "children" is to be determined by the legislation of the various states to whose authority the subject is normally committed. The absence of a definition indicates the intention of Congress to permit the determination of that question according to state law.
Under our statute of Descent and Distribution of Intestate Property, N.J.S. 3 A:4-1 et seq. , illegitimate children can only inherit property by and through his or her ...