R. C. Brown, J.c.c. (temporarily assigned).
This is a survival action and a wrongful death action instituted by the plaintiff as a general administratrix and administratrix ad prosequendum of the estate of the decedent, Victor Cruz. The decedent was a migrant farm worker from the Commonwealth of Puerto Rico. On the day of the accident causing his death he was returning from work on a bus which was allegedly struck in the rear by the sand-loaded truck of the defendant. He sustained multiple injuries eventually resulting in his death.
This matter comes on for hearing on a motion for summary judgment which is directed solely against the first count of the complaint demanding damages for wrongful death. The complaint alleges that the action is brought for the benefit of Susana Rosado Torres, the widow of the decedent, and his four surviving and dependent children.
As a result of a previous argument on this motion before me, it was stipulated that no ceremonial marriage ever took place between the decedent and Miss Torres, so the claim on her behalf is no longer being made. Counsel additionally stipulated that only the younger two children, Andres Cruz Rosado, age 12, and Julia Cesar Cruz Rosado, age 11, were born of the relationship between Miss Torres and the decedent. Therefore, counsel agreed that claim is now made only on behalf of the two younger children. Claim is no longer made for the elder two children, who were born of some previous relationship between Miss Torres and one
Ramon Lopez. The stipulations narrow the issue to the question of whether the two younger allegedly dependent children of the decedent are such persons as are entitled to take his intestate personal property.
Plaintiff contends that the dependent children of the decedent are such persons as are entitled to take his intestate personal property under the New Jersey Death Act.
The defendant concedes that the law of Puerto Rico gives to the beneficiaries, that is the dependents of the decedent, his personal property.
It is the contention of the defendants that the Legislature established this special cause of action with the intention that any proceeds thereof should be distributed according to the law of the jurisdiction which has conferred such right of action, i.e. , that of New Jersey.
The questions are, therefore, whether the law of the domicile of the decedent, Puerto Rico, or the law of the forum, New Jersey, determines the method of disposition of damages, and further, whether the law of the domicile or the law of the forum determines the legal status of the dependent children of the decedent.
In order to better understand the present problem, the evolution through which the Death Act has gone should be reviewed. R.S. 2:47-4 provided as follows:
"The amount recovered * * * shall be for the exclusive benefit of the widow, surviving husband, and next of kin of decedent, and shall be distributed to them in the proportions provided by law for the distribution of the personal property of intestates * * *."
This section was amended by L. 1948, c. 429, § 1, p. 70. The section then stated that the amount recovered under the Death Act:
"* * * shall be for the exclusive benefit of the widow, surviving husband, dependent children of the decedent, or the descendants of any such children, the dependent natural parents of the decedent, the dependent adopting parents of a legally adopted child and the dependent next of kin of the decedent, except the natural parents of
a decedent who was legally adopted, and shall be distributed to them in the proportions provided by law for the distribution of the personal property of intestates * * *."
It is to be noted that in both of these statutes the distribution is to a specifically enumerated class, and that this class would take in the proportions provided by law for the distribution of the personal property of intestates. These statutes were superseded by N.J.S. 2A:31-4, which states that
"The amount recovered in proceedings under this chapter shall be for the exclusive benefit of the persons entitled to take any intestate personal property of the decedent, and in the proportions in which they ...