For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Weintraub, C.J.
The principal question is whether illegitimate children may recover damages for the wrongful death of their natural father.
Decedent was married in 1955 and had two children by that marriage. In 1956 he separated from his wife. Thereafter he lived with another woman ostensibly as her husband and had by her five children, all of whom were members of his household when he died in 1966. On motion the trial court held the illegitimate children could not recover damages for the wrongful death of their father despite their dependency upon him. The Appellate Division affirmed, 104 N.J. Super. 126 (1969), and an appeal was taken to us as of right, R.R. 1:2-1(a), because of the constitutional issue, whether the denial of relief to these children because of their illegitimacy offends the equal protection clause of the Federal Constitution.
The wrongful death action was unknown to the common law and hence is the creature of statute. Our wrongful death statute has always identified the beneficiaries of the action by referring to the statute controlling distribution of intestate personalty. Thus the first wrongful death act (P.L. 1848, p. 151) provided that the action "shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportions provided by law in relation to the distribution of personal property left by persons dying intestate." In its present form the death act, N.J.S.A. 2 A:31-4, reads:
"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."
We are thus referred to the statutes relating to the distribution of intestate personalty to ascertain the beneficiaries of a death action. At common law an illegitimate child could not inherit from its mother or its putative father. Hammond v. Pennsylvania R.R. Co., 31 N.J. 244, 251 (1959). The rule was modified by N.J.S.A. 3 A:4-7 in these terms:
"For the purpose of descent and distribution under this chapter to, through and from an illegitimate child, such child shall be treated the same as if he were the legitimate child of his mother, so that he and his issue shall inherit and take from his mother and from his maternal kindred, including his maternal ancestors, descendants and collaterals; and they, from him and his issue. When parents of an illegitimate child shall marry subsequent to his birth and recognize and treat him as their child, such child shall be deemed to have been made the legitimate child of both of his parents for the purpose of descent and distribution to, through and from him under this chapter."
Accordingly the illegitimate child takes from and through its mother, but not from or through the father unless legitimated in accordance with this provision.
Reading the wrongful death act in the light of the statute concerning distribution of personal property, the Appellate Division concluded that an illegitimate child could recover for the wrongful death of its mother but not for the wrongful death of its natural father unless legitimated under N.J.S.A. 3 A:4-7. See Di Medio v. Port Norris Express Co.,