Goldmann, Kolovsky and Carton. The opinion of the court was delivered by Goldmann, S.j.a.d.
The main question on this appeal is whether an action may be maintained under the Death Act, N.J.S. 2 A:31-1 et seq., on behalf of illegitimate children to recover for the alleged wrongful death of their putative father. We hold that it may not.
The appeal comes before us on an agreed statement of facts in lieu of record, pursuant to R.R. 1:6-2.
On November 5, 1966 decedent Cornelius Paynter, Sr. was a passenger in an automobile owned and operated by defendant Creecy when it went off the road, upset and overturned in a body of water. Paynter drowned.
Decedent had married Doris Jean Davis in Kentucky and had two children by her. In 1956 he separated from his wife and took up residence in Camden, N.J. At the time of his death the wife and two children were and continue to
be residents of Kentucky. Decedent was under a court order to pay $15 a week for the support of the children.
In Camden decedent lived with Evereen Randells, allegedly holding themselves out as man and wife. Five children were born to them and were allegedly members of their household at the time of decedent's death.
The legal wife applied for letters of administration ad prosequendum, as did decedent's mother. After the surrogate had certified the case to be one of doubt and difficulty, the Camden County Court appointed plaintiff general administrator and administrator ad prosequendum of decedent's estate. Plaintiff then brought an action against defendant under the Death Act on behalf of the Kentucky wife and her two children in the Superior Court, Law Division (Docket L-18757-66). He subsequently also instituted a similar action in the same court on behalf of the five illegitimate children "for the wrongful deprivation of their support" by reason of decedent's death, as well as for recovery of funeral expenses incurred by Evereen Randells (Docket L-21595-66).
The two actions were ordered consolidated for trial. Defendant then moved to dismiss the complaint filed on behalf of the illegitimate children on the ground that they were not entitled to recover as a matter of law and plaintiff was not entitled to recover funeral expenses. Counsel for decedent's legal wife and children joined in the argument in support of the motion. The trial judge filed a written opinion and entered the order here under appeal, dismissing the complaint.
Sometime after the notice of appeal was filed this court, on application of the attorney for appellant, entered an order relieving him from the necessity of filing his brief until the case of Levy v. Louisiana, then pending in the United States Supreme Court, was decided. The opinion in that case came down on May 20, 1968, 391 U.S. 68, 88 S. Ct. 1509, 20 L. Ed. 2 d 436.
Although decedent's wife and legitimate children (or plaintiff administrator ad prosequendum as to them) are not named as respondents on this appeal, they were parties to the motion below, have a direct pecuniary interest in our determination, and through counsel join in the brief filed by defendant.
N.J.S. 2 A:31-4, part of the Death Act, as it read at the time of decedent's death, provided:
"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 are entitled to take the same. If any of the persons so entitled were dependent on the decedent at his death, they shall take the same as though they were sole persons so entitled, in such proportions, as shall be determined by the court without a jury, and as will result in a fair and equitable apportionment of the amount recovered, among them, taking into account in such determination, but not limited necessarily thereby, the age of the dependents, their physical and mental condition, the necessity or desirability of providing them with educational facilities, their financial condition and the availability to them of other means of support, present and future, and any other relevant factors which will contribute to a fair and equitable apportionment of the amount recovered." (Italics ours)
Although, as plaintiff notes in his brief, this case does not deal with the succession of property, yet since only persons who are capable of inheriting a decedent's personal property can qualify for any portion of the recovery, the law dealing with such succession must be consulted. N.J.S. 3 A:4-2 provides that in the case of a decedent dying intestate,
"One-third of the personal property shall be distributed to the intestate's husband or widow, as the case may be, and the residue in equal portions among the intestate's children and such persons as legally represent any child who may have died."
And N.J.S. 3 A:4-7, dealing with illegitimate children, ...