Neill v. . Wilson

TIoke, J., after stating the case: Our statute addressed to this question (Nevisal, sec. 59) enacts as follows: “Whenever the death of a person is caused by a wrongful act, neglect or default of another, such as would, if the injured party had lived, have entitled him to an action for damages therefor, the person or corporation that would have been so liable, and his or their executors, administrators, collectors or successors, shall be liable to an action for damages, to be brought within one year after such death, by the executor, administrator or collector of the decedent; and this notwithstanding the death, and although the wrongful act, neglect or default causing the death amount in law to a felony. The amount recovered in such action is not liable to be applied as assets in the payment of debts or legacies, but shall be disposed of as provided in this chapter for the distribution of personal property in case of intestacy.” It is said in Oooley on Constitutional Limitations (7th Ed.), p. 517, that “a vested right of action is property in the same sense that tangible things are property,” and, quoting this authority with approval in Duckworth v. Mull, 143 N. C., *245 466, the Court said: “While in ordinary transactions the term ‘property’ is not supposed to include a right of action, yet in constitutions and public statutes, where the words permit and the spirit and intent of the law require, a vested right of action is frequently considered and treated as property.” It is not required, however, to resort to this rule of construction, as on a statute of doubtful import, for we are of opinion that the statute quoted gives clear indication of the purpose of the Legislature to impress upon the right of action the character of property as a part of the .intestate’s estate, and that, for the purpose of devolution and transfer, the right of the claimants should be fixed and determined as of the time when the intestate died. Even if the statutes were less explicit, the inconvenience of adopting any other period for determining who should be the rightful claimants, and the uncertainty that would attend it, extending in many instances over a long period of time, would almost of necessity compel such a construction. This position finds some support in the case of Baker v. Railway, 91 N. C., 308, where the Court sustained and made effective a release given by one of the beneficiaries prior to recovery. According to the interpretation we have given it, that the right of action conferred is property and to be treated for the purpose of distribution as a part of the intestate’s estate, the recognized principle applies, referring to the time of the intestate’s death as the period when the distributees, as the rightful claimants of vested interests, shall be fixed and determined. Whit v. Bay, 26 N. C., 14; Rosa v. Clark, 8 Paige, 574; Cyc., Vol. XIV, pp. 107-109. It follows from this position that, under section 4, Eevisal, thé administrator de bonis non of Mrs. Quinn is entitled to her share of the fund in question, to be held by him for the benefit of J. E. Quinn, the husband, subject to the claims of her creditors and others having'rightful demands against'her; for the protection of this fund against creditors, provided for by the statute, sec *246 tion 59, supra, refers to tbe creditors of tbe intestate and does not extend or apply to tbe creditors of tbe distributees. There is no error in tbe judgment below, and tbe same is Affirmed.