Davis v. Herbert , 78 N.H. 179 ( 1916 )

The question presented is not an open one in this state. The only charges against the damages recovered for wrongfully causing death are the expenses of recovery. The balance "shall belong and be distributed" to certain beneficiaries. P. S., c. 191, s. 13. The damages are not assets for the satisfaction of creditors' claims against the estate, and the general assets cannot be used to prosecute a suit of this character to the detriment of creditors. Cogswell v. Railroad, 68 N.H. 192, 194.

It is urged that because the expenses to the estate caused by the injury may be recovered as an element of damage in these suits (P. S., c. 191, s. 12), therefore the legislature must have intended such recovery to be for the benefit of the creditors to that extent. The language of section 13 is too explicit to admit of such interpretation. And it takes nothing from the estate or its creditors which theretofore belonged to it or them. The statute creates a new cause of action, unknown to the common law, and provides how the damages recovered shall be distributed.

Whether an unpaid undertaker's bill could be deemed an expense "occasioned to his estate by the injury," when he left no estate out of which the bill could be satisfied, is a question which is not presented by the facts in this case and upon which no opinion is expressed.

Exception sustained.

All concurred.