fact that the husband had been guilty of desertion. The court held that since the deserted husband was no longer a member of the family group, having by his voluntary act of desertion severed the family relationship, the action could be filed by the mother in the name of the husband. That if there was a recovery, the proceeds could be paid to the court and equitable distribution made among those entitled. This would enable the husband to establish, if it be a fact, that he did not desert his wife and that, therefore, he is entitled to share in the proceeds.
It would appear that since no provision exists in the Survival Statute or the Intestate Act that deprives a husband or surviving spouse from the right toright of a surviving spouse to share in the distribution of his wife's estate where he is the sole next of kin and is negligent, either individually or concurrently with a third person, which resulted in his wife's death. This is true even though the concurrent negligent act of the husband with a third person created the basic claim through which funds were realized that became available for distribution in the administration of his wife's estate. Act June 7, 1917, P.L. 429, 20 Purdon's Penna.Statutes Annotated, § 1 et seq.
It would appear inequitable and unjust to permit a husband to profit by his own contributory negligence, and it seems contrary to sound principles and against public policy. However, the right of an executor or administrator to institute an