dozen cups and saucers; one coffee pot; one tea pot; half dozen knives and forks; one table; the family bible; one saddle and its appendages; one bridle; six chairs, or so many as shall not exceed eight dollars in value; all the poultry on hand; five head of sheep; and wearing apparel; also, a sufficiency of provisions, including breadstuff and animal food, to sustain the widow and infant children residing with her, for one year; and if there is not a suffi ciency of provisions on hand for that purpose, then so much of the live stock suitable for that purpose, and of the grow ing crop, if any, as may be necessary to supply the deficiency. But if there are no such infant children residing with the widow, and there are adult or infant children not residing with her, the provision contained in this section for the widow, or the value of such portion thereof as she receives, shall be charged to her in the distribution. § 12. A personal representative may distribute the estate of a decedent nine months after his death. 1851. Widow's re § 13. When a widow claims her dowable and distributable share of her husband's estate, she shall be charged with nunciation, &c. the value of any devise or bequest to her by his will. Or she may, though under full age, relinquish what is given her by the will, and thereupon receive her dower and distributable share, as if no will had been made; but such relinquishment must be made within twelve months after the probate, and acknowledged and left for record with the clerk of the court where probate was made, or acknowledged before two subscribing witnesses, and proved by one of them before and left with the clerk. Nothing herein shall preclude the widow from receiving her dowable and distributable share, in addition to any devise or bequest made to her by the will, if such is the intention of the testator, plainly expressed in the will, or necessarily inferrable therefrom. § 14. Except where a devise or bequest is made to the widow by the will of her husband, not renounced by her, she shall not be deprived of her share of his slaves, though they are emancipated by his will; but she shall be compensated therefor out of his other personal estate, if there is a sufficiency thereof for that purpose, after payment of debts. When only a part of the slaves is set free, her share shall be taken out of those not emancipated, if they are enough. If any part of the slaves set free, is necessary for her share, all of those set free shall be hired out, and the hire paid to her, until she is compensated for her share. §15. The foregoing provisions in favor of the wife are all subject to this condition: if she voluntarily leaves her husband and lives in adultery, she shall have no part of the personal estate of which he dies intestate, unless her husband, after she so left him, became reconciled to her and suffered her to live with him. Distribution. 1851. brought hotchpot. into § 16. Where the husband separates from the wife and lives apart from her in adultery, and she dies without a reconciliation and cohabitation, he shall have no part of her personal estate as a distributee. § 17. Any real or personal property or money, given or Advancements devised by a parent or grandparent to a descendant, shall be charged to the descendant, or those claiming through him, in the division and distribution of the undevised estate of the parent or grandparent, and such party shall receive nothing further therefrom, until the other descendants are made proportionately equal with him, according to his descendible and distributable share of the whole estate, real and personal, devised and undevised. The advancement shall be estimated according to the value of the property when given. The maintaining or educating, or the giving of money to a child or grandchild, without any view to a portion or settlement in life, shall not be deemed an advancement. § 18. Advancements made to distributees shall not be taken as part of the decedent's personal estate, in estimating the distributable share of the widow therein. CHAPTER XXVI. FRAUDULENT CONVEYANCES AND DEVISES, 1. Every gift, conveyance, assignment, or transfer of, or charge upon, any estate, real or personal, or right or thing in action, or any rent or profit thereof, made with the intent to delay, hinder, or defraud creditors, purchasers, or other persons, and every bond or other evidence of debt given, suit commenced, decree or judgment suffered, with like intent, shall be void, as against such creditors, purchasers, and other persons. This section shall not affect the title of a purchaser for valuable consideration, unless it appear that he had notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor. §2. Every gift, conveyance, assignment, transfer, or charge made by a debtor, of or upon any of his estate, without valuable consideration therefor, shall be void as to all his then existing liabilities, but shall not, on that account alone, be void as to creditors whose debts or demands are thereafter contracted, or as to purchasers with notice of the voluntary alienation or charge; and though it be adjudged to be void as to a prior creditor, it shall not therefor be decreed to be void as to such subsequent creditors or purchasers. §3. Every such voluntary alienation of or charge upon personal property, unless the actual possession, in good faith, accompanies the same, shall be void as to a purchaser without notice, or any creditor, prior to the lodging for record of such transfer or charge be recorded in the office of the county court for the county where the alienor or person creating the charge resides. § 4. Where any loan of personal property is pretended to have been made to any person with whom, or those claiming under him, possession shall have remained for five years, without demand made and pursued by due process of law on the part of the pretended lender, or where any reservation or limitation, by way of condition, reversion, remainder, or otherwise, is pretended to have been made in the alienation of such property so possessed, the absolute right shall be deemed to be with the possession, in favor of a purchaser without notice, or any creditor of the person so remaining in possession, unless the written evidence of the loan, reservation, or limitation be in like manner duly recorded in the county where the person resides, or is contained in a properly recorded will. § 5. A devisee shall be liable for all debts and liabilities of the testator, in the same manner as the heir of the testator would have been liable, if the property devised, had descended to the heir." §6. The same actions which lie against the personal representatives, may be brought jointly against him and the heir or devisee of the decedent, or both, and shall not be delayed for the non-age of any of the parties. §7. The last two sections shall not apply to a devise made in good faith, for the payment of any of the testator's debts, it such devise have not the effect of giving precedence in favor of one creditor to the prejudice of another. § 8. When the heir or devisee shall alien before suit brought, the estate descended or devised, he shall be liable for the value thereof, with legal interest from the time of alienation, to the creditors of the decedent or testator; but the estate so aliened shall not be liable to the creditors, in the hands of a bona fide purchaser for valuable consideration. § 9. To the extent of assets received, the representative, heir, and devisee of an heir or devisee, shall be chargeable for the liabilities of either of the latter as such, to the creditors of the original decedent or testator. § 10. The heir or devisee may be sued in equity by a creditor, for any liability of the decedent or testator, and he may also, in such suit, if demanded, obtain, by the proper procedure, a lien on any specified property, descended or devised, not theretofore aliened, but not so as to prejudice thereby any other creditor. 1851. 1851. CHAPTER XXVII. SURETIES AND CO-OBLIGORS. § 1. When a surety or his representative wishes, for good cause, to be relieved from further liability, as such, in the official bond of any officer, he may, by written notice to the officer, require him by a named day to appear and give a new bond, with other surety, before the court in which, or whose clerk's office, the original was given or is kept; or, if not so given or kept in any court or clerk's office, then before the circuit court for the county of the officer's residence. The officer shall have reasonable notice, of not less than ten days, of such proceeding, if he be within the state. If not within the state, thirty days' notice shall be given, by advertisement posted at the court house door of the county in which he resides or last resided, or by publication in some newspaper printed in the county, if there be any such printed therein, or written notice left at his residence. § 2 If a new bond be given, the surety shall not be bound for any act of the principal thereafter. If the officer fail to give a new bond on the day named, or such other reasonable day as the court may prescribe, he shall, by order of the court, be removed from his office. §3. The surety of any fiduciary, or other person, other than a personal representative or guardian, giving bond, with surety, pursuant to law or order of court, before entering on the duties of his trust or employment, may in like manner be relieved, by requiring the execution of a new bond, with other surety; or, on the failure of the principal to give the same, the court shall revoke or suspend his powers, and make such other orders as may thereupon be needful, for the benefit of the estate or trust confided to him. § 4. The surety of any officer, or of any such fiduciary, or of such other person, or of any person for whom he may be bound by private agreement, may, by attachment, restraining order, ne exeat, or other order out of chancery, obtain indemnity, or coerce the principal to give indemnity, by adequate security against his liability as such surety. § 5. A co-obligor or co-contractor may, in like manner as in the last section named, obtain indemnity for his liability for any or all of the other obligors or contractors, whether the debt be due or not, where the other obligor has removed, or is about to remove himself, or his property or the greater part thereof, out of the state, or is wasting his estate, or is about to sell the same, with intent to cheat his creditors. § 6. No such order as indicated in the last two sections shall be issued, unless the complaint is verified by affidavit, and the complainant first gives bond, with good surety, to satisfy the defendant all costs and damages he may sus tain by reason of the order, if it be improperly obtained. §7. Where a surety pays the whole, or any part of a debt or liability for which he is bound as such, he may recover the amount, with interest from time of payment, from the principal, by action at law, or by motion after ten days' notice in writing. He may also sue a co-surety, separately, or as a joint defendant with the principal, in such proceeding, and in like manner recover judgment against him, separately or jointly, at the same time, for his proper part of the debt or liability so paid, as if the sureties were the sole obligors; and if one or more of several co-sureties be insolvent, or reside out of the state, the recovery against the solvent and resident surety or sureties, shall also be for a proper part of the share of liability pertaining to such insolvent or non-resident surety. If the surety afterwards make further payment on the debt or liability, he may again have like remedy therefor. But where the payment is made, except under judgment or decree, in a suit of which the principal or co-surety had notice, nothing herein shall preclude either of them from making such defense as he might have made against the original demand. §8. Where the surety pays the whole or part of a judgment or decree, he shall have a right to an assignment thoreof, from the plaintiff or the plaintiff's attorney, in whole or in part, and such assignment shall give him the right to sue out or use any existing execution, or otherwise control the judgment or decree for his own benefit, against the other defendants, after satisfaction in full to the plaintiff therein, so far as to obtain satisfaction from the principal for the whole amount so paid by the surety, with interest, or from any co-surety, his proper part of such payment, according to the principles of the last section. Such assignment shall also transfer, to the surety so paying, the benefit of any lien existing under or by virtue of such judgment or decree; and the right to the assignment shall exist, though the money was made or secured by sale of the property of the surety, under execution. § 9. Co-obligors or co-contractors shall, as between each other, have the full benefit of the last two sections, as if they were co-sureties. 10. A surety, co-obligor, or co-contractor, or one of several defendants to a judgment or decree, may, by notice in writing served in person within the state on the creditor or plaintiff or his attorney, require him to sue or issue execution; and if the creditor shall not sue, to the next term thereafter at which he can obtain judgment, and in good faith prosecute the suit with reasonable diligence, or if the plaintiff shall not, within ten days thereafter, sue out exe 1851. |