Riley, Judge:
The plaintiff administrator brought this action of trespass on the case under Code, 55-7-5, 6 (the! so-called wrongful death statute), to recover damages for the alleged wrongful death of his decedent. On its own motion, the Circuit Court of Kanawha County certified its ruling in reversing the ruling of the Court of Common Pleas and sustaining a demurrer to defendant’s special plea.
The declaration contains no allegation that decedent was survived by a widow or next of kin capable of taking any recovery provided by law for the distribution of personal estates left by persons dying intestate. The special plea is in bar. It specifically denies the existence of any persons who would be entitled to the recovery if obtained.
On this certificate, the only issue is whether the defendant, as a bar to recovery, may prove under its plea that there were no persons entitled to a recovery for the alleged wrongful death.
The statute (Code, 55-7-5, 6), as presently constituted, provides, in effect, that the personal representative of a decedent, whose death ensued as the result of the wrongful act, neglect, etc., of another may maintain an action against the guilty party; that the amount recovered shall be distributed to the parties and in the proportions provided by law in relation to the distribution of the personal estate left by persons dying intestate; that such damages, not to exceed $10,000.00, as the jury may deem fair and just, may be awarded; and the amount recovered shall not be subject to any debts and liabilities of the deceased.
The original statute, adopted in 1863 (West Virginia Acts, 1863, Chapter 98), is substantially in the language
of the present statute, except the recovery was limited to $5,000.00 and the statute contained a provision to the effect that “The amount recovered in every case shall be
for the exclusive benefit of the widow and next of kin”
of the deceased person. With the original statute in force, this Court sustained a demurrer1 to a declaration on the ground that it failed to aver that the decedent had a widow or next of kin for whose benefit alone it was claimed the action could be maintained.
B. & O. R. R. Co.
v.
Gettle, Adm’x.,
3 W. Va. 376. In its opinion, the court said, id., 384: “It is very manifest, therefore, that the widow and next of kin constitute the very pith and essence of this action, and that if there be none such the action will not lie.” Subsequently, the statute was amended by the deletion of the provision to the effect that recovery was for the exclusive benefit of the widow or next of kin, and the incorporation of a provision to the effect that the amount recovered “shall be distributed to the parties and in the proportions provided by law in relation to the distribution of personal estates left by persons dying intestate.” The limitation of the amount recoverable was enlarged from $5,000.00 to $10,000.00. (Code 1884, Chapter 103, Section 6). With the statute thus amended, it was held that a declaration in a wrongful death action need not allege that the decedent left a widow or next of kin.
Madden’s Adm’r.
v.
C. & O. R. Co.,
28 W. Va. 610, 57 Am. Rep. 695. A case then arose in which the declaration included the names of decedent’s widow and children, and alleged that the damages claimed by the administrator had accrued to them. This Court held that the foregoing should be treated as mere surplusage, and did not render the declaration demur-rable.
Searles
v.
Kanawha, etc., R. Co.,
32 W. Va. 370, 9 S. E. 248, 251.
Such was the state of the law in West Virginia on the immediate point under scrutiny until the time of the instant case. Clearly,
B. & O. R. R. Co.
v.
Gettle, Adm’x., supra,
must be disregarded because of the change in the statute. And the
Madden
and
Searles
cases, dealing as
they do solely with matters of pleading and practice, did not adjudicate the question of substantive law involved here. Well might it be said that the principle determined in the latter cases is entirely consistent with the proposition that the non-existence of persons entitled to take under this ■ statute is a matter of defense. That the existence of such persons need not be alleged by the plaintiff is analogous to the rule of pleading applying to contributory negligence in tort cases.
Defendant’s position finds a strong background in section 6 of the present statute and the general authorities applying to wrongful death statutes. This section provides that “the amount recovered * * * shall be distributed to the parties and in the proportion provided by law in relation to the distribution of personal estate left by persons dying intestate.” Code, 55-7-6. Under the clear weight of authority, the existence of beneficiaries is a condition to the right to invoke the aid of the statute. See generally, Note to
Flash
v.
Louisiana Western R. Co.,
137 La. 352, 68 So. 636, L. R. A., 1916E, 112, 136; 8 R. C. L., Subject Death, section 40, Note 19; 17 C. J., p. 1211; and Tiffany, Death by Wrongful Act, section 80. The policy of the statute is remedial and not punitive. With this in mind, we are persuaded, in the light of the foregoing authorities, to the view that the plea contains a good defense. In so holding, we do not say that the plaintiff is not entitled to recovery in any event. We simply say that the defendant, if it is able to do so, may prove the non-existence of persons entitled to the benefit of recovery under the statute. Such proof, directed as it is to a negative factual proposition, may be difficult. With its difficulty, however, the problem presented here is not concerned.
But plaintiff’s counsel say that, in the absence of a surviving spouse or next of kin, recovery should be allowed and that the amount thereof should escheat to the State. This position contravenes the provision of the statute to the effect that the amount of recovery sought, if obtained, would not be subject to the decedent’s debts,
as in the case of an estate subject to escheat. Moreover, a decedent’s estate only is the subject matter of escheat. “Whenever any person shall die intestate and without any heir or next of kin,
owning
real estate or personal property within this State, the title of such deceased person therein shall escheat to the State.” (Code, 37-2-1). “To the State shall accrue all the personal estate of every decedent, of which there may be no other distributee.” (Code, 42-2-2). (Italics supplied). Here, the claim asserted never was owned by the decedent. It was prompted into being by virtue of decedent’s death. By no stretch of the legal imagination, we think, can the recovery claimed be said to be a part of the decedent’s estate.
Richards
v.
Riverside Iron Works,
56 W. Va. 510, 511, 49 S. E. 437;
Thompson & Lively
v.
Mann,
65 W. Va. 648, 650, 64 S. E. 920, 22 L. R. A. (N. S.) 1094, 131 Am. St. Rep. 987;
Peters
v.
Kanawha Banking & Trust Company,
118 W. Va. 484, 191 S. E. 581, 582, 583;
Fetty
v.
Carroll,
118 W. Va. 401, 190 S. E. 683, 684.
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Riley, Judge:
The plaintiff administrator brought this action of trespass on the case under Code, 55-7-5, 6 (the! so-called wrongful death statute), to recover damages for the alleged wrongful death of his decedent. On its own motion, the Circuit Court of Kanawha County certified its ruling in reversing the ruling of the Court of Common Pleas and sustaining a demurrer to defendant’s special plea.
The declaration contains no allegation that decedent was survived by a widow or next of kin capable of taking any recovery provided by law for the distribution of personal estates left by persons dying intestate. The special plea is in bar. It specifically denies the existence of any persons who would be entitled to the recovery if obtained.
On this certificate, the only issue is whether the defendant, as a bar to recovery, may prove under its plea that there were no persons entitled to a recovery for the alleged wrongful death.
The statute (Code, 55-7-5, 6), as presently constituted, provides, in effect, that the personal representative of a decedent, whose death ensued as the result of the wrongful act, neglect, etc., of another may maintain an action against the guilty party; that the amount recovered shall be distributed to the parties and in the proportions provided by law in relation to the distribution of the personal estate left by persons dying intestate; that such damages, not to exceed $10,000.00, as the jury may deem fair and just, may be awarded; and the amount recovered shall not be subject to any debts and liabilities of the deceased.
The original statute, adopted in 1863 (West Virginia Acts, 1863, Chapter 98), is substantially in the language
of the present statute, except the recovery was limited to $5,000.00 and the statute contained a provision to the effect that “The amount recovered in every case shall be
for the exclusive benefit of the widow and next of kin”
of the deceased person. With the original statute in force, this Court sustained a demurrer1 to a declaration on the ground that it failed to aver that the decedent had a widow or next of kin for whose benefit alone it was claimed the action could be maintained.
B. & O. R. R. Co.
v.
Gettle, Adm’x.,
3 W. Va. 376. In its opinion, the court said, id., 384: “It is very manifest, therefore, that the widow and next of kin constitute the very pith and essence of this action, and that if there be none such the action will not lie.” Subsequently, the statute was amended by the deletion of the provision to the effect that recovery was for the exclusive benefit of the widow or next of kin, and the incorporation of a provision to the effect that the amount recovered “shall be distributed to the parties and in the proportions provided by law in relation to the distribution of personal estates left by persons dying intestate.” The limitation of the amount recoverable was enlarged from $5,000.00 to $10,000.00. (Code 1884, Chapter 103, Section 6). With the statute thus amended, it was held that a declaration in a wrongful death action need not allege that the decedent left a widow or next of kin.
Madden’s Adm’r.
v.
C. & O. R. Co.,
28 W. Va. 610, 57 Am. Rep. 695. A case then arose in which the declaration included the names of decedent’s widow and children, and alleged that the damages claimed by the administrator had accrued to them. This Court held that the foregoing should be treated as mere surplusage, and did not render the declaration demur-rable.
Searles
v.
Kanawha, etc., R. Co.,
32 W. Va. 370, 9 S. E. 248, 251.
Such was the state of the law in West Virginia on the immediate point under scrutiny until the time of the instant case. Clearly,
B. & O. R. R. Co.
v.
Gettle, Adm’x., supra,
must be disregarded because of the change in the statute. And the
Madden
and
Searles
cases, dealing as
they do solely with matters of pleading and practice, did not adjudicate the question of substantive law involved here. Well might it be said that the principle determined in the latter cases is entirely consistent with the proposition that the non-existence of persons entitled to take under this ■ statute is a matter of defense. That the existence of such persons need not be alleged by the plaintiff is analogous to the rule of pleading applying to contributory negligence in tort cases.
Defendant’s position finds a strong background in section 6 of the present statute and the general authorities applying to wrongful death statutes. This section provides that “the amount recovered * * * shall be distributed to the parties and in the proportion provided by law in relation to the distribution of personal estate left by persons dying intestate.” Code, 55-7-6. Under the clear weight of authority, the existence of beneficiaries is a condition to the right to invoke the aid of the statute. See generally, Note to
Flash
v.
Louisiana Western R. Co.,
137 La. 352, 68 So. 636, L. R. A., 1916E, 112, 136; 8 R. C. L., Subject Death, section 40, Note 19; 17 C. J., p. 1211; and Tiffany, Death by Wrongful Act, section 80. The policy of the statute is remedial and not punitive. With this in mind, we are persuaded, in the light of the foregoing authorities, to the view that the plea contains a good defense. In so holding, we do not say that the plaintiff is not entitled to recovery in any event. We simply say that the defendant, if it is able to do so, may prove the non-existence of persons entitled to the benefit of recovery under the statute. Such proof, directed as it is to a negative factual proposition, may be difficult. With its difficulty, however, the problem presented here is not concerned.
But plaintiff’s counsel say that, in the absence of a surviving spouse or next of kin, recovery should be allowed and that the amount thereof should escheat to the State. This position contravenes the provision of the statute to the effect that the amount of recovery sought, if obtained, would not be subject to the decedent’s debts,
as in the case of an estate subject to escheat. Moreover, a decedent’s estate only is the subject matter of escheat. “Whenever any person shall die intestate and without any heir or next of kin,
owning
real estate or personal property within this State, the title of such deceased person therein shall escheat to the State.” (Code, 37-2-1). “To the State shall accrue all the personal estate of every decedent, of which there may be no other distributee.” (Code, 42-2-2). (Italics supplied). Here, the claim asserted never was owned by the decedent. It was prompted into being by virtue of decedent’s death. By no stretch of the legal imagination, we think, can the recovery claimed be said to be a part of the decedent’s estate.
Richards
v.
Riverside Iron Works,
56 W. Va. 510, 511, 49 S. E. 437;
Thompson & Lively
v.
Mann,
65 W. Va. 648, 650, 64 S. E. 920, 22 L. R. A. (N. S.) 1094, 131 Am. St. Rep. 987;
Peters
v.
Kanawha Banking & Trust Company,
118 W. Va. 484, 191 S. E. 581, 582, 583;
Fetty
v.
Carroll,
118 W. Va. 401, 190 S. E. 683, 684.
Judge Hatcher, in the opinion in
Fetty
v.
Carroll, supra,
following the language used in
Richards
v.
Riverside Iron Works, supra,
and
Thompson
v.
Mann, supra,
said: “ * * * while the decedent’s administrator alone may sue, his relation to any fund recovered is not that of decedent’s representative, but that of trustee for the next of kin.” In
State
v.
Phoenix Mutual Life Insurance Company,
114 W. Va. 109, 170 S. E. 909, 91 A. L. R. 1482, the sole beneficiary under an insurance policy killed the insured and the State of West Virginia asserted the right to escheat the proceeds of the policy as without a beneficial owner. The court said: “ * * * a trust estate, was not subject to escheat under the common law,” and cited Beach on Trusts, sec. 417; Perry on Trusts (6th Ed.), sec. 434; Washburn on Real Property (6th Ed.), sec. 1442; Story, Eq. Juris. (14th Ed.) sec. 1592, Note 6; and Pomeroy, Eq. Juris. (4th Eds), sec. 990. Though not in point, State v. Phoenix
Mut. L. Ins. Co., supra,
presents, on the question of escheat, a situation somewhat analogous to the instant case; and the court’s rea
son throws light on the discussion of the question involved here.
It may be suggested that, in the absence of a widow or next of kin, the recovery, in the instant case, would devolve to the State under the express provisions of the wrongful death statute. Such suggestion is met by the wording of the statute itself. By providing that the amount of the recovery shall be
distributed to- the parties and in the proportion in relation to the distribution of the personal estate
left by persons dying intestate, section 6 of the statute clearly refers to the statute of distribution. Code, 42-2-1. It contains no express provision for an escheat as provided by Code, 42-2-2; and Code, 37-2-1.
In considering the statutory provisions as to escheat, we have kept in mind that the words “distribution” and “escheat” have well settled technical meanings in law. “Distribution means the division of the residuary estate of a deceased person among his next of kin within the limits allowed by statute.” 10 Halsbury’s Laws of Eng. (2d Ed.), sec. 821. Accord:
Thomson
v.
Tracy,
60 N. Y. 174, 180-1. The word “escheat” signifies “a falling of decedent’s estate into the general property of the state on his death, intestate and without lawful heirs.”
Braun
v.
McPherson,
277 Mich. 396, 269 N. W. 211, 212 The word denotes “an obstruction of the course of descent.” Blackstone, Book 2, page 244. Accord:
In re Maltbie,
102 Misc. 575, 169 N. Y. S. 339. Escheat is not technically a part of distribution and in fact has no application to property until distribution becomes impossible. This distinction is clearly recognized in
In re Miner’s Estate,
143 Cal. 194, 76 Pac. 968, which holds: “The state does not come in by way of succession on failure of heirs or next of kin to take an estate of a decedent, but in such event the property * * * goes to the state by escheat.” Consequently, the references in section 6 of the wrongful death statute to' distribution of the recovery to the parties and
“in the proportion”
in relation to the distribution of personal estate of an intestate dece
dent, does not include an escheat. In so holding, we are aware that the statute of distribution contains a section providing for the escheat of personal estate (Code, 42-2-2, supra), in the case of an estate “of which there mav be no other distributee.” At most, the use of these words is inept and must be considered in the light of the principles underlying the laws of distribution and escheat.
After all, the present statute has underlying it the same policy which, in the first instance, inspired the enactment of the original Lord Campbell’s Act, that is, the survival of actions for wrongful death for the benefit of the decedent’s widow and next of kin. See Note, L. R. A. 1916E, pp. 136, 137, 138. Where there is no surviving spouse or next of kin, the beneficent purpose of the statute would not be served by an escheat to the state of the recovery under it.
We, therefore, are of opinion that the circuit court erred in reversing the court of common pleas on demurrer to defendant’s plea. The ruling of the circuit court is reversed with directions to overrule the demurrer and remand the case to the court of common pleas for further proceedings.
Reversed and remanded.