By the Court or Jury. In some jurisdictions the statutes expressly provide that the court or the jury shall fix the proportions in which the recovery shall be divided among the several beneficiaries.1 2. When Subject to Debts of Deceased. Where the recovery is, under the statute, regarded as personal assets of the decedent's estate, it seems that, in the absence of an express provision to the contrary, the recovery is subject to the payment of the decedent's debts.2 But where the action is given to certain beneficiaries or to the administrator for their benefit, it belongs to them free from any liability on account of the decedent's debts.3 Texas. - Under the Texas statute the jury is required to apportion the damages among the several beneficiaries. Sayles's Civ. Stat., art. 2909. Where the plaintiffs are husband and wife the recovery is community property and the statute has no application. San Antonio St. R. Co. v. Mechler, (Tex. Civ. App. 1894) 29 S. W. Rep. 202. See also Gulf, etc., R. Co. v. Burleson, (Tex. Civ. App. 1894) 25 S. W. Rep. 1107; Missouri, etc., R. Co. v. Evans, (Tex. Civ. App. 1897) 41 S. W. Rep. 8o. If all the beneficiaries are parties, the fact that the verdict gives a lump sum to all the children of deceased collectively, if it is an error at all, is not an error of which the defendant can complain and will not authorize a reversal on the defendant's appeal. Texas, etc., R. Co. v. Hudman, 8 Tex. Civ. App. 309. The complaint may apportion the damages claimed among the beneficiaries, and the jury cannot award any beneficiary a greater sum than that allotted by the complaint. International, etc., R. Co. v. McDonald, 75 Tex. 41, 42 Am. & Eng. R. Cas. 211. Where the only parties plaintiff are the husband and the adult son of deceased, the defendant cannot complain that the entire verdict was for the husband where the son, in open court, waived his claim. Dallas Rapid Transit R. Co. v. Elliott, 7 Tex. Civ. App. 216. So also the defendant cannot complain that the damages, including the funeral expenses, were awarded in a gross sum to both parents, they being the sole beneficiaries, particularly where no special instruction on the matter was asked in the trial court. Missouri, etc., R. Co. v. Evans, (Tex. Civ. App. 1897) 41 S. W. Rep. 80. Distribution Governed by Law in Force at the Time the Death Occurred. -See Richmond v. Chicago, etc., R. Co., 87 Mich. 374. Distribution in Chancery. - Where a railway company pays money to the executors of a person killed by it, the Chancery Division, in a suit brought by the executors asking for a declaration as to the persons entitled to the money, may distribute the funds among such relatives of the deceased as suffered damage by reason of the death, in the same manner as a jury could have done under Lord Campbell's Act. Bulmer v. Bulmer, 25 Ch. Div. 409, 53 L. J. Ch. 402, 32 W. R. 380. Distribution of Under the English Statute Money Paid into Court. - Lord Campbell's Act, 9 & 10 Vict., c. 93, provided that the jury should apportion the recovery. By 27 & 28 Vict., c. 95. § 2, it was provided that the defendant, upon being advised to pay the money into court, may pay it as compensation in one sum to all the parties entitled thereto, without specifying the sums into which it shall be divided by the jury. In Sanderson v. Sanderson, 36 L. T. 847, the widow and administratrix of S., who was killed by a railway company, brought an action against the company, and the company paid eight thousand five hundred pounds into court under the act just mentioned, which sum the widow accepted in full. The deceased had left four infant children. The widow and children had been entirely dependent for their maintenance on the professional earnings of deceased. It was held that, by analogy to the statute of distributions, the widow should take one-third and the children the remaining two-thirds. In another case, the money having been paid into court, the widow was allowed to draw it out on a consent signed by her being made an order of court, whereby she agreed to a division of the money in certain specified proportions between herself and three infant children. Shallow v. Vernon, 9 Ir. R. C. L. 150. Where the husband received the entire sum and no apportionment was ever made by the jury or otherwise between himself and the two sons of the deceased, it was held that the two sons could not maintain an action in the same court in which the recovery was had to compel an apportionment, but their remedy, if any, was in the chancery court. Condliff v. Condliff, 29 L. T. 831, 22 W. R. 325. 2. Recovery a Part of Decedent's Estate. Where the statute is merely a survival statute and only provides that a right of action for personal injuries shall not abate with the death of the injured person, but may be revived in the name of his personal representatives, the proceeds of the recovery are to be regarded as personal property belonging to his estate. Missouri Pac. R. Co. v. Bennett, 5 Kan. App. 231. 3. When Not Subject to Decedent's Debts. -Griswold v. Griswold, 111 Ala. 572. An administrator holds the fund recovered solely for the use and benefit of those entitled to it under the statute and free from the claims of legatees or creditors of deceased. It is subject, however, to commissions and reasonable counsel fees. See Code of N. Car. (1883), 1500; Baker v. Raleigh, etc., R. Co., 91 N. . Car. 308. Compare Wynkoop v. Myers, 17 Civ. 3. How Distributed. In a number of the states the statutes prescribe specifically how the damages recovered shall be distributed, and the statutes must therefore be first consulted on this subject. Where the Statute Is a Survival Statute. If the statute is purely a survival statute, and the personal representative is designated as the party to sue, the recovery, in the absence of a direction in the statute, becomes personal assets of the estate of the deceased and must be distributed as other personal assets are.1 Administrator's Liability for Improper Distribution. The liability of the administrator in this connection is governed by the general rules of law governing administrators.2 Party Authorized to Sue May Employ Counsel. A party upon whom the statute confers a right of action, either for his own use or for the use of others, or both, is entitled to employ counsel for prosecuting the action and may pay his fees out of the recovery before distributing it.3 Among Whom the Distribution Is to Be Made must be determined from the statute, and, in the absence of a special provision in the statute creating the right of action, by the statute of distributions.4 Pro. Rep. (N. Y. City Ct.) 443, where it is held that although the statute provides that the recovery shall be exclusively for the benefit of the next of kin, yet it is nevertheless subject to the payment of the decedent's debts and the expenses of administration. Under the Minnesota Statute, Gen. Laws, 1891, c. 123. I, providing that out of any money recovered by the personal representative for the wrongful death of the deceased, “ any demand for the support of the deceased and funeral expenses, duly allowed by the Probate Court," shall first be paid, the damages recovered by the personal representative do not become subject to the general debts of deceased nor to debts incurred by him for the support of himIself or family, but only to such debts as were contracted by him for his support, etc., after his injury. State v. Probate Ct., 51 Minn. 241. Under Texas Statute.- Money recovered for the benefit of the parent of one who has been killed by the defendant's negligence forms no part of the decedent's estate, and therefore can in no event be paid to his creditors or distributed generally to his heirs or distributees under the statutes of descent and distribution. Rev. Stat. of Tex., art. 1882, has no application to any matter not strictly and properly pertaining to decedent's estate. This construction of the statute is not affected by the fact that the law confers authority on the executor or administrator to prosecute the action for wrongful death, if suit be not brought within three months after the death by the parties first entitled to the benefit of the action. Houston, etc., R. Co. v. Hook, 60 Tex. 403. 1. Recovery to Be Distributed as Personal Assets of Decedent's Estate. - South, etc., Alabama R. Co. v. Sullivan, 59 Ala. 272; Sherman v. Western Stage Co., 24 Iowa 515; Ladd v. Foster, 12 Sawy. (U. S.) 547, 31 Fed. Rep. 827 (construing Oregon statute). In Virginia - Money Received in Compromise Settlement. - Under the Virginia statute, money received in compromise of a right of action for a wrongful death must, after pay. ment of costs and counsel fees, be distributed according to the general statute of distributions. Powell v. Powell, 84 Va. 415. 2. See the titles EXECUTORS AND ADMINISTRATORS; FOREIGN EXECUTORS AND ADMINIS TRATORS. Administrator Held Liable for Wrongful Distribution. An important case in this connection is Perry v. Carmichael, 95 Ill. 519, 1 Am. & Eng. R. Cas. 174. A Mrs. R., who was a resident citizen of Illinois, while traveling in Indiana, was killed in a railway accident. The Indiana statute required the administrator to bring the suit. P. was appointed in Illinois as administrator instead of R., the deceased's husband. He instituted suit and then compromised with the railway company for $1,900, which he paid over to R.; R. having subsequently died, the heirs of Mrs. R. brought this suit against P. to compel him to pay to them their share of the $1,900. It was held that they were entitled to recover their proportion; that the act of P. as administrator in paying over the whole amount to R. was illegal; he should have accounted for it as administrator and allowed the probate court to order its distribution. 3. See Lee v. Van Voorhis, 78 Hun (N. Y.) 575. In this case the statute expressly authorizes the personal representative to deduct the expenses of the action from the recovery. - 4. Among Whom Distributed. Under Rev. Stat. Wis., SS 4255-56, the damages recoverable under section 4425 belong exclusively to the widow. Gores v. Graff, 77 Wis. 174. Pennsylvania. - The original statute (Act of April 26, 1855) provided that the persons entitled to recover damages should be the husband, widow, children, or parents of deceased, the recovery to be distributed among them as if it were personal property left by intestate. Under this provision, the widow, upon receiving the amount awarded her in the action for the death of her husband, cannot retain the whole sum for the use of herself and family, but must distribute to the children their portion. Allison v. Powers, 179 Pa. St. 531, 39 W. N. C. (Pa.) 522. Tennessee. - Under the original rule, the husband was entitled to all the damages recoverable for the death of his wife. Trafford v. Adams Express Co.. 8 Lea (Tenn.) 111; Chattanooga Electric R. Co. v. Johnson, 97 Specific Beneficiaries Named by the Statute. When the statute vests the right of action in the administrator for the benefit of the widow or children or others, the damages recovered are not assets of the decedent's estate, to be distributed in the same manner as other personalty, but must go directly to the parties for whose benefit suit was brought.1 4 DEBAR. (See also the title ATTORNEY AND CLIENT, vol. 3, p. 300.) - To debar is to cut off from entrance, to preclude; to hinder from approach, entry, or enjoyment; to shut out or exclude.2 DEBAUCH- DEBAUCHED. (See also the titles CRIMINAL CONVERSATION, supra; RAPE; SEDUCTION.)-See note 3. Tenn. 667. But by Acts of 1897, c. 86, p. 231, the children are entitled to share equally with him. The amendment of 1871 to T. & S. Tenn. Code, 2291, 2292 (now M. & V. Code, §§ 3130, 3131), which gives a right of action to the widow, and, if there be no widow, to the children, or to the personal representative of the deceased, for the benefit of the widow and next of kin, does not affect the right of the children to share in the damages with the widow. Felton v. Spiro, 78 Fed. Rep. 576, 47 U. S. App. 402. 1. Statute Naming Beneficiaries - Damages to be Awarded Directly. - Jeffersonville, etc., R. Co. v. Swayne, 26 Ind. 477; Baker v. Raleigh, etc., R. Co., 91 N. Car. 308. Where the right to recover for the death of a minor child is given to the administrator for the benefit of the father, he is entitled to receive the entire recovery, and a payment of the amount to him will discharge the administrator. Perry v. Carmichael, 95 Ill. 519, I Am. & Eng. R. Cas. 183. A recovery had under Gen. Stat. of Ky., c. 57.3, does not devolve by inheritance nor pass by a will. It must be distributed directly to the beneficiaries named in the statute. Carrithers v. Cox, (Ky. 1890) 14 S. W. Rep. 599. Administrator Recovers as Trustee for Beneficiaries. Under the Kansas statute (code, 422), which vests the right of action in the administrator for the benefit of the widow and children or next of kin of the deceased, the damages recovered are not a part of the estate of the deceased, to be administered under the general law governing the administration of estates, but belong to the beneficiaries. The administrator sues, not for himself, but as trustee for the beneficiaries named. Perry v. St. Joseph, etc., R. Co., 29 Kan. 420, 11 Am. & Eng. R. Cas. 663; Union Pac. R. Co. v. Dunden, 37 Kan. 1, 34 Am. & Eng. R. Cas. 88. 2. Webster's Dict., quoted in Printup v. Alexander, 69 Ga. 556. 3. The word debauched, which in our ordinary dictionaries is defined enticed, led astray, vitiated, or corrupted,' has, especially when used as a legal word, a more extended signification. The verb to debauch' is a word of French origin, compounded of the preposition de, from,' and bauche, an old Armorican word in use in Brittany, meaning shop, and signifying, in its compound sense, to entice or draw one away from his work, employment, or duty. It is in this sense of enticing and corrupting that it came into use in our language, as will be found by a reference to one of the earliest authorities for the meaning of English words, Phillips's New World of Words (1696), where it is defined, to corrupt one's manners, to make lewd, to mar or spoil,' a sense in which it had been previously used by Ben Jonson and by Shakespeare. Bailey, in his dictionary, some twenty years after, adds further, to seduce and vitiate a woman.' As applied to a woman, the word as thus defined meant merely seduction. But in the folio edition of Bailey by Scott (1755), the meaning of the word was extended to seduce and violate a woman.' It is in this twofold sense that it is used in the law form, which it has now fully acquired as a general word. Mackenzie, in his English Synonyms (London, 1854), defines it to ravish, deflower, violate;' and it is used in Worcester's Dictionary (Boston, 1847) as an appropriate definition for the word constuprate,' from the Latin constupro, meaning 'to violate.' Koenig v. Nott, 8 Abb. Pr. (N. Y. C. Pl.) 389, 2 Hilt. (N. Y.) 329, where it was held upon demurrer that a complaint in an action by a female alleging " that the defendant, with force and arms, illtreated and made an assault upon her, and then and there debauched and carnally knew her," was a sufficient averment of an assault and battery. Criminal Conversation. In an action by a husband for damages for seducing and debauching his wife the gravamen of the action is criminal conversation, without proof of which he cannot recover. Wood 7'. Mathews, 47 Iowa 409. Here the court said: "Appellee insists, however, that the allega tion in the petition that defendant debauched plaintiff's wife imports that he led her astray, corrupted her, corrupted her affections, her conscience, her judgment, and that by reason of that the plaintiff was injured; and that a wife may be debauched, and yet the crime of adultery be not committed. Such is not the sense in which the term debauch is employed in law, nor is such its usual and ordinary acceptation. The term is employed in our statute in connection with the crime of seduction. Can a person be sent to the penitentiary five years for corrupting the affections, the conscience, and the judgment of an unmarried woman of previously chaste character? That such conduct would be very reprehensible, in foro conscientia, no one can doubt; but it belongs to a domain into which * * * Same-Debauch and Seduce Distinguished. In State v. Reeves, 97 Mo. 668, it is said: "There are two steps necessary to be taken in order to consummate the crime under discussion: First, the female must be seduced, that is, corrupted, deceived, drawn aside from the path of virtue which she was pursuing; her affections must be gained, her mind and thoughts polluted; and, second, in order to complete the offense, she must be debauched - that is, she must be carnally known before the guilty agent becomes amenable to 959 human laws. Thus, it will be seen that a female may be seduced without being debauched, or debauched without being seduced. If Joseph Andrews had yielded to the salacious solicitations of. Lady Booby, as she lay naked in her bed, he would have been guilty of debauching her person, but certainly not of corrupting her mind. A similar view of the proper construction to be given to a statute substantially identical with our own was taken in Pennsylvania (Com. v. McCarty, 4 Pa. L. J. 136), and cited with approval in State v. Patterson, 88 Mo. 88." See also Putnam v. State, 29 Tex. App. 454; State v. Wheeler, 108 Mo. 662. But, in Stoudt v. Shepherd, 73 Mich. 588, it was held that there was no substantial difference between seduce and debauch as a ground of action for loss of service. Debauched Habits. — Evidence that a widow with a family of small children had taken into her house a profligate man who had abandoned his wife and children, and that she was living with him as his wife, and had had two illegitimate children by him, is sufficient to show that she was a woman of "debauched habits." Wickwire's Appeal, 30 Conn. 86. Volume VIII. DEBENTURES. BY WILLIAM L. CLARK, JR. I. DEFINITION AND NATURE, 961. II. ISSUE OF DEBENTURES, 963. 1. Power of Company to Issue, 963. b. Property That May Be Charged, 964. c. Charter or Statutory Restrictions, 964. 2. Agreement to Issue, 965. 3. Authority of Officers, 965. 4. Execution and Delivery, 966. 5. Requirement of Registration, 966. III. RIGHTS AND LIABILITIES OF HOLDERS, 967. 1. Status as Creditors and Not Stockholders, 967. 2. Whether Debentures Give an Interest in Land, 968. a. In General, 968. b. Mortgage or Pledge Notwithstanding Debentures, 969. d. Execution by Other Creditors, 970. e. Agreement to Charge, 970. f. Defective Charge, 971. g. Intention to Charge and Sufficiency of Language, 971 h. Extent of Charge, 972. 4. Right to Interest, 973. 5. Priority as Between Debentures, 973. 6. Power of Majority of Holders to Bind Minority, 974. 7. Assignment and Transfer, 974. a. In General, 974. b. Negotiability of Debentures, 975. c. Estoppel of Company, 977. IV. REMEDIES OF HOLDERS, 977. 1. Enforcement of Charge on Winding Up, 977 2. Actions by Holders and Appointment of Receiver, 978. 3. Petition by Holders to Wind Up Company, 980. 4. Execution, 980. 5. Protection of Security, 980. 6. Ejectment, 981. CROSS-REFERENCES. For other matters of SUBSTANTIVE LAW and EVIDENCE related to this subject, see the titles ASSIGNMENTS, vol. 2, p. 1007; BILLS OF SALE, vol. 4, p. 555; CHATTEL MORTGAGES, vol. 5, p. 945: CORPORATIONS (PRIVATE), vol. 7, p. 620; ESTOPPEL; FRAUDS (STATUTE OF); MORTGAGES; MUNICIPAL SECURITIES; OFFICERS AND AGENTS (OF PRIVATE CORPORATIONS); PLEDGE AND COLLATERAL SECURITY; PROMOTERS; RAILROAD SECURITIES; |