Oliver Wendell Holmes, Jr.

“ No one doubts that if Carlton had died leaving a widow she could have applied as the executor did, and executors are mentioned alongside of the widow with no suggestion in the statute that when executors are the proper persons, if anyone, to make the claim, they cannot make it whenever a widow might have made it. The next of kin come after the executors. Surely they again have the same rights that the widow would have had. The limitation is derived from a theory that the statute cannot have intended the executor to take unless he took what the testator already had. ”

“ We should not have derived that notion from the section, which seems to us to have the broad intent that we have expressed, and the words specially applicable seem to us plainly to import that if there is no widow or child the executor may exercise the power that the testator might have exercised if he had been alive. The executor represents the person of his testator, Littleton, § 237, and it is no novelty for him to be given rights that the testator could not have exercised while he lived. ”

“ A familiar illustration is to be found in the Employers' Liability Act (Comp. St. §§ 8657-8665) which gives to personal representatives a new cause of action for causing death, although the foundation is the original wrongful injury to the deceased. ”