them, then to the father if he be living, if not, to the mother of the intestate; and if there be no children of the intestate, or descendants of such children, and no brothers or sisters, or descendants of them, nor father or mother, then such estate shall descend in equal parts to the next of kin to the intestate, in equal degree, computing by the rules of the civil law; and there shall be no representation among collaterals, except with the descendants of the brothers and sisters of the intestate; and there shall in no case be a distinction between the kindred of the whole and half blood, except the kindred of the whole blood in equal degree shall be preferred to the kindred of the half blood in the same degree; saving to the widow of the intestate, in Widow's all cases, her dower. And where there shall be no children of such dower, when intestate, nor descendants of them, then the widow shall have as her scendants. dower, one-half of such before-mentioned estate of her deceased hus band. no lineal de §3. Where a man, having by a woman a child or children, shall b. Sec. 18. afterwards intermarry with such woman, such child or children, if recognized by him, shall be thereby legitimated. Children before marri. age, legiti inated. Bastards to 4. Bastards shall be capable of inheriting, or of transmitting in- 1-21—(5) heritance on the part of their mother, in like manner as if they had S been lawfully begotten of such mother; and shall also be entitled to inherit on a distributive share of the personal estate of any of their kindred, on the mother. the part of their mother, in like manner as if they had been lawfully begotten of such mother. the part of Bastard's § 5. The kindred of any bastard on the part of his mother, shall be rb. Sec. 2. entitled to the distribution of the personal estate of such bastard, in kindred to like manner as if such bastard had been lawfully begotten of his have distri mother. bution of his estate. Estates in § 6. When two or more persons hold an estate, real or personal, 1818—(1) jointly, and one joint-tenant dies before severance, his interest in said Sec. 1. joint estate shall not survive to the remaining joint-tenant, or joint- joint-tenantenants, but shall descend to, and be vested in the heirs or other legal as though representatives of such deceased joint-tenant, in the same manner as if severed. his interest had been severed and ascertained. NOTE-Posthumous children not provided for by will, are entitled to inherit as in case of intestacy.-See "Wills,”—§ 6. cy to descend DISQUALIFYING LAWS. § 1. LAWS shall be made to exclude from office, from suffrage, and from serving as jurors, those who shall hereafter be convicted of bribe- Con. Ala. ry, perjury, forgery, or other high crimes or misdemeanors. Art. 6. Sec. 1. crimes dis §2. Any person who shall be convicted of bribery, forgery, perjury, larceny, subornation of perjury, receiving stolen goods, knowing them 1827-(33) to be stolen, or shall be convicted of stealing, or altering, or defacing Certain any record, with intent to defraud, shall be disqualified from holding, qualify from or exercising any office under this state, from serving as a juror in any holding of suit, from giving testimony before any judicial tribunal in this state, or serving as and from voting at any election therein. NOTE-Disqualification for embezzlement by bank officers.-See " Bank of the State of Alabama,”—§ 19. Branch at Montgomery,-§ 8; at Decatur, -§7; at Mobile,-8. Assessors and collectors of taxes, convicted of making a false and fraudulent return, shall be thenceforth incapable of holding any office of profit, honor, or trust within this state.-See "Taxes,"-§ 46.-See also "Duelling,”—§ 10. fice, voting, juror or wit ness. Con. Ala. 1824-(15) Sec. 1. Causes of divorce. DIVORCES.1 § 1. DIVORCES from the bonds of matrimony shall not be granted but in cases provided for by law, by suit in chancery; and no decree for such divorce shall have effect until the same shall be sanctioned by two-thirds of both houses of the general assembly. § 2. Where a marriage hath been heretofore, or shall be hereafter contracted and celebrated between any two persons, and it shall be adjudged that either party at the time of the contract was, and still is, Natural im- naturally impotent, in every such case, it shall be lawful for the injur ed person to obtain, in manner heretofore provided by law, a divorce from the bonds of matrimony. potency. 1832-(20) may grant divorces in cases of adul tery, aban donment, and extreme cruelty. 1820-(29) Sec. 2. Application § 3. The several circuit courts of this state are hereby invested with full and authority, to decree divorces in the manner prescribed power by law, and in the following cases, that is to say: in favor of the husband, where his wife shall have been taken in adultery, or voluntarily left his bed and board for the space of three years, with intention of abandonment; and in favor of the wife, where her husband shall have left her for the space of three years, with intention of abandonment; or where he shall have abandoned her, and lived in adultery with another woman; or where his treatment to her is cruel, barbarous, and inhuman. § 4. In the cases before-mentioned, the party desirous of obtaining a divorce, may apply to the circuit court of that county, in which he for divorce to or she resides, by a bill in chancery, stating the grounds of the appli in chancery. cation, on which such proceedings shall be had as are usual in other suits in chancery. be by bill Ib. Sec. 3. Notice to non-resident § 5. If the court shall be satisfied that the defendant is not a resident of this state, order of publication shall be made as in other cases defendants. of non-resident defendants, except that the order shall succinctly state the object of the bill. Ib. Sec. 4. Defendants, may answer without oath. Bill not con- Ib. Sec. 5. § 6. The defendant may appear and answer the complainant's bill, without oath, denying the allegations thereof, or if the defendant shall fail to appear and answer, the cause may be set down for trial, but the bill shall not be taken for confessed, but proof shall be required to support the allegations thereof, as in cases where they are decided by answer. § 7. The court may pronounce a decree for a divorce according to the provisions of this act; but such decree shall not operate so as to fending par release the offending party, who shall remain nevertheless subject to to release of ty. 1 An act passed March 10, 1803, entitled "An act concerning divorce and alimomy," provides: Sec. 3. That divorces from the bond of matrimony, shall be decreed in cases where the parties are within the degrees prohibited by law, in cases where either party is naturally impotent, and in case of adultery in either of the parties, and also for wilful, continual, and obstinate desertion, for the term of five years; but the decree or sentence of divorce, in such cases, shall not render illegitimate the issue born under such marriage. Sec. 4. That divorces from the bond of matrimony shall also be decreed, where either of the parties had another wife or husband, living at the time of such second or other marriage, and that all marriages, where either of the parties shall have a former wife or husband living at the time of such marriage, shall be invalid from the beginning, and absolutely void. The act of December 23, 1824, repeals this law as to all the grounds of divorce above specified, except that of "natural impotency," continuing at the time of the application for a divorce by the party injured. The concluding pan of each section, however, suggests obvious reasons why they should be retained, at least in this form, all the pains and penalties which the law prescribes against a marriage, where a former wife or husband is living. § 8. The court pronouncing the decree of divorce, shall also decree Ib. Sec. 6. and order a division of the estate of the parties, in such way as to Alimony. them shall seem just and right, having due regard to the rights of each party and their children, if any: Provided however, That nothing herein-contained shall be construed to compel either party to divest him or herself of the title to real estate. Temporary § 9. Pending a suit for a divorce, the court may make such tempo- b. Sec. 7. rary orders respecting the property and parties, as they shall deem orders. equitable. ceedings to to speaker of house of re § 10. When a decree shall be rendered for a divorce, it shall be the r. Sec. 8. duty of such court to make out, at the request of the party in whose Copy of profavor the decree is rendered, a complete copy of the record and evi- be delivered dence in said suit, which shall be certified by said clerk, and by him sealed up and directed to the speaker of the house of representatives presenta of the state of Alabama, and endorsed thereon that it is a decree for a divorce; which decree and proceedings shall be delivered to said speaker by the party, or his or her attorney, applying for the same, within and during the ensuing session of the legislature. tives. 11. It shall be the duty of the speaker of the house of repre- Ib. Sec. 9. sentatives, in the presence of the members of the house, to open such Speaker's record, and cause the same to be read and proceeded on according to the constitution of the state of Alabama. duty. § 12. If it appears to the court that the adultery complained of is 1803—(5) occasioned by collusion of the parties, and done with intention to procure a divorce, then no divorce shall be decreed. Sec. 5. 13. If any persons cohabit together after the divorce, for the cause of adultery, such persons so offending shall be liable to all the Penalty for pains and penalties provided by the laws then existing against adul tery. cohabiting after divorce for adultery. Sec. 2. Bar against 14. If it shall appear that the complainant has been guilty of 1824—(15) adultery, and has admitted the defendant into conjugal society or embraces, after he or she knew of the criminal fact, or that the said plain- divorce. tiff (if the husband) allowed of his wife's prostitution, it shall be a bar against a divorce for such previous misconduct. § 15. In all cases where both parties shall be guilty of adultery, it b. Sec. 3. shall be a bar to a divorce. Mutual adultery. Confessions § 16. In order to prevent collusion between the parties, in no case Ib. Sec. 4. shall the confession of them, or either of them, be taken or received not evidence. as evidence in any case of divorce. marriage of fault, void. § 17. In no case of divorce shall the party against whom such di- b. Sec. 5. vorce may be granted, or who may have been guilty of any of the Subsequent offences upon which such divorce may have been granted, be allowed the party in to marry again; and in case the said party shall marry again, such marriage is hereby declared null and void; and the party so marrying again shall be liable to such penalties as are prescribed for the crime of adultery. 18. No person shall be permitted to commence a suit in chancery b. Sec. 6. for a divorce, until he or she shall have been an inhabitant of this Complainant state at least three years immediately preceding. must have resided 3 years in the state. Divorces § 19. Divorce from bed and board may be granted for extreme cruelty in either of the parties, on the application of the party aggrieved, b. Sec. 7. by the same proceedings in the circuit court of the county, in which from bed and the complainant may reside, as are, or may be required by law to be board. had, on bill, praying divorce from the bonds of matrimony, and the divorce of such circuit court shall be final. 1833-(1) Sec. 1. Chancery courts in § 20. The courts of chancery shall have power in all cases of sepa ration between man and wife, and neither party shall obtain a divorce, to give the custody and education of the children to either the father or mother, as to them may seem right and proper, having regard to tween man the prudence and ability of the parents, and the age and sex of the child may assign or children. cases of separation be and wife children to either. 1833-(15) Sec. 1. § 21. The courts of chancery shall have power, in cases of the separation of parents, to permit either the mother or father to have the care and education of the children, of any of them, as to said courts may seem just and proper; to be determined and decided on the petition of either party; and in the meantime to issue any injunc tion, or make any order, that the safety and well-being of any such children may require. 1806-(1) Sec. 11. Widow may DOWER. § 1. THE widow may in all cases waive the provision made for her in the will of her deceased husband, and claim her dower, which waive pro- shall be assigned her accordingly; in which case she shall receive no part of such provision, unless it appears plainly by the will that the testator intended it in addition to her dower. vision by will, and claim her Ib. Sec. 17. dower, when insolvent. § 2. When the estate of any testator or intestate shall be represented insolvent, and shall not be sufficient, both real and personal, to pay the estate is the just debts, the widow of such testator or intestate shall, though there be no children or descendants to them of such testator or intestate, be endowed with one-third only of the lands, tenements, and hereditaments of her deceased husband, anything in this act to the contrary notwithstanding.a a See Descents, § 2. 1812-(14) Sec. 1. How the wi endowed when the intestate, or § 3. When any person shall die intestate, or shall make his last will and testament, and not therein make any express provision for dow shall be his wife, by giving and devising unto her such part or parcel of his real and personal estate, as shall be fully satisfactory to her, such widow husband dies may signify her dissent thereto in the superior or county court in the she dissents County wherein she resides, at any time within one year after the to his will. probate of such will, and then and in that case she shall be entitled to dower in the following manner, to wit: one-third part of all the lands, tenements, and hereditaments, of which her husband died seised, and possessed, or had before conveyed, whereof said widow had not relinquished her right of dower, as heretofore provided for by law, which third part shall be and inure to her proper use, benefit and behoof, in and during the term of her natural life; in which said third part shall be comprehended, the dwelling-house in which her husband shall have been accustomed most generally to dwell next be fore his death, together with the offices, out-houses, buildings, and other improvements thereunto belonging, or appertaining: Provided, That if it should appear to the judges or justices of the court to whom application is made, that the whole of the said dwelling-house, outhouses, buildings, and other improvements thereunto appertaining, cannot be applied to the use of the widow, without manifest injustice to the children, or other heirs, then, and in that case, such widow shall be entitled to such part only as the court may deem reasonable and just.1 1 When the deceased husband has left no lineal descendants, the widow is to be endowed with one-half of his real estate: See "Descents,"-§ 2,—unless his estate be insolvent, as above,-§ 2. Widow's tate. 64. When a husband dies intestate, or shall make his last will and b. Sec. 2. testament, and not make provision therein for his wife, as expressed share of the in the first section of this act, she shall be entitled to share in the per- personal essonal estate, in the following manner, to wit: if there be no children, (a 1826—(35) or if there be but one child, she shall be entitled, out of the residue Sec. 1.] left after paying the debts of the deceased, to one-half: if there be more than one child, but not more than four, in that case she shall be entitled to a child's part; but if there be more than four children, then, and in that case, she shall be entitled to one-fifth part in absolute right. Widow may er. 5. It shall be lawful, after the passing of this act, for any widow Th. Sec. 3. claiming dower, to file her petition in the superior or county court, in file petition the county where her husband shall have usually dwelt next before for her dowhis death, setting forth the nature of her claim, and particularly specifying the lands, tenements, and hereditaments of which she claims dower, and praying that her dower may be allotted to her; whereupon the said court shall issue their writ to the sheriff, commanding him to summon five discreet freeholders, as commissioners, connected with the parties neither by consanguinity or affinity, and entirely disinterested, who, upon oath, which oath the sheriff is hereby authorized to administer, shall allot, and set off by metes and bounds to the said portion to be widow, one-third part according to quantity and quality, of all the allotted by lands, tenements, and hereditaments in said county, and shall put her bounds. in possession of the same, which possession shall vest in her an estate for her natural life; and where she has claim to dower to lands lying in different counties, she may proceed in the superior or county court of the county where such land may lie, and make recovery in manner as is hereby directed; and the sheriff and commissioners shall also at the same time allot and set off to such widow her portion of Portion of the personal estate of which her husband died possessed, and to personal eswhich by this law she shall be entitled, which part or portion shall lotted by be and inure to such widow, her heirs, executors, administrators, and sheriff and assigns, for ever. metes and tate to be al commission ers. Proceedings on petition ry. 6. The proceedings upon such petitions for dower shall be in a b. Sec. 4. summary way, and the court shall, at their first term when such petition is filed, proceed to hear and determine as to them shall seem just to be summa and right: Provided, That the party petitioning for dower shall give ten days previous notice to the executors or administrators, by serving them with a copy of said petition; and where there are no executors or administrators, or where they do not reside in the county of the residence of such widow, or where the widow shall be the executrix or administratrix, then she shall give the said notice by advertisement in one of the newspapers published in the territory, nearest to the residence of such widow, to be published four times in succession. Widow to retain pos §7. It shall be lawful for the widow to retain the full possession of 1b Sec. 5. the dwelling-house, in which her husband most usually dwelt, next before his death, together with the out-houses, offices, or improve- session till ments and plantation thereunto belonging, free from molestation and signed. rent, until she shall have her dower assigned her. dower is as Sec. 3. 8. Whenever any person shall die leaving a widow not satisfac- 1816—(6) torily provided for, according to the act of the general assembly, Certain passed on the 22d day of December 1812,1 any land, the title to lands subject which shall be secured in conformity to the provisions of this act, 1 The second act under this title. 2 to dower. • Lands purchased of the United States, for which partial payments only |