the other more than one half of his or her property. Any married person having no children may devise one half to other persons than husband or wife. Aside from these restrictions any person may leave what he pleases to charity and not make any provision for child or children unless he desires.

Verbal will made in last sickness, valid in respect to personal estate, if reduced to writing and subscribed by two competent disinterested witnesses within ten days after speaking the testamentary words, and on proof by such witnesses that testator was of sound mind and called on some person present to bear testimony to said deposition as his will.

No nuncupative will to be recorded unless offered within six months from death of tes

tator.

LAWS OF KENTUCKY

RELATIVE TO THE

COLLECTION OF DEBTS,

TAKING OF DEPOSITIONS, ETC.

REVISED EXPRESSLY FOR HUBBELL'S LEGAL DIRECTORY, DECEMBER 1, 1906, BY TRABUE, DOOLAN AND COX, OF THE LOUISVILLE bar.

Actions. A civil action is commenced by filing in the office of the clerk of the proper court a petition, and causing a summons to be issued or warning order made thereon. (Code Civil, § 39.)

Non-residents of this State, or a corporation other than a bank, or a municipality, created by the laws of this State, before commencing a proceeding in any of the courts, must execute a bond for costs; but action will not be dismissed if, bond not having been executed, the plaintiff execute bond before judgment upon motion therefor by opposite party. (Civil Code, §§ 616 and 617.)

Administration of Decedents' Estates. See Claims against Estates of Decendents. Affidavits May be made in this State before a judge of a court, a justice of the peace, a notary public, examiner, clerk of a court, or master commissioner; out of the State before a commissioner appointed by the governor of this State, or a person specially commissioned, or before a judge of a court, a justice of the peace, mayor of a city, or notary public. (Civil Code, §§ 549, 564.) Certificate of officer is proof of time and manner of affidavit being made. (§ 551.) No proof of officer's commission or qualification is required, except that certificate of notary should state when his commission expires. (Ky. Stat. § 3721.) Any affidavit which the Code requires or authorizes a party to make may, unless otherwise expressed, be made by his agent or attorney, if he be absent from the country. (Civil Code, § 550.) Affidavit of agent or attorney must state absence of principal as a fact and not as a matter of belief. (60 S. W. 186.)

Aliens. Alien not being an enemy, may, after intention declared to become a citizen of the United States, recover, inherit, hold, pass by descent, devise, or otherwise any interest in real or personal property, as if he were a citizen. See also United States treaties with various nations.

Arrest. A defendant to a civil action can be arrested and held to bail when there is an affidavit of the plaintiff showing: 1st. The nature of the plaintiff's claim. 2d. That it is just. 3d. The amount of value which the affiant believes the plaintiff ought to recover. 4th. That the affiant believes, either, - that the defendant is about to depart from this State, and, with intent to defraud his creditors, has concealed or removed from this State his property, or so much thereof that the process of the court after judgment cannot be executed; or that the defendant has money or securities for money or evidences of debt in the possession of himself, or of others for his use, and is about to depart from this State, without leaving property therein sufficient to satisfy plaintiff's claim. To effect this, bond and security must be given. Bail may be given by the defendant to render himself amenable to the process of the court. In default of bail, the defendant is committed to jail, where he must remain until he pays the debt, gives bail, or takes the insolvent debtor's oath. (Code of Practice, title 8, ch. 1.) See Attachments.

Assignments. -
- See Insolvent Laws and Assignments.

Attachments. The plaintiff may have an attachment, which may be made a writ of garnishment, by indorsement on the attachment, against the property of the defendant (or of a garnishee where it is necessary to make the garnishee a defendant, as permitted by § 227, Civ. Code), in an action for the recovery of money, where the action is against: (1) a defendant, or several defendants, who, or some one of whom, is a foreign corporation, or a non-resident of the State, the attachment being, of course, against the property of the foreign corporation or non-resident; or (2) who has been absent therefrom four months; or (3) nas departed from the State with intent to defraud his creditors; or (4) has left the county of his residence to avoid the service of summons; or (5) so conceals himself that a summons cannot be served upon him; or (6) is about to remove or has removed his property, or a material part thereof, out of this State, not leaving enough therein to satisfy plaintiff's claims, or the claims of the said defendant's creditors; or (7) has sold, conveyed, or otherwise disposed of his property, or suffered or permitted it to be sold, with the fraudulent intent to cheat, hinder, or delay his creditors; or (8) is about to sell, convey, or other

wise dispose of his property with such intent. But an attachment shall not be granted on the sole ground that the defendant or defendants, or any of them, is a foreign corporation or a non-resident of this State, for any claim other than a debt or demand arising upon contract. (See Bates Machine Co. v. Norton Iron Works, 113 Ky. 372.) To obtain an attachment before judgment and return of "No property found" on execution, the plaintiff must file an affidavit, showing (1) nature of plaintiff's claim; (2) that it is just; (3) the amount which the affiant believes the plaintiff ought to recover; and (4) the existence of some one of the grounds above enumerated. No attachment will issue except in supplemental proceedings after judgment and a return of no property, unless bond and security are given in double the amount of claim, with probable costs. One surety is sufficient. See Sureties. Must have property in this State subject to execution in double amount of bond. An attachment and garnishment may also be granted against a defendant who has no property in this State subject to execution, where the plaintiff's debts would be endangered by delay, and also in an action to recover personal property, where, after an order for its delivery to plaintiff, it had been concealed or removed or so disposed of that the order cannot be executed. (Civil Code, § 194.) See, as to attachments in divorce cases, Divorce.

Before a debt or liability on contract becomes due, an equitable action may be brought for indemnity, and an attachment against defendant's property or order of arrest obtained by order of court on similar grounds as above stated and after bond given as above provided. (Civil Code, §§ 237, 248.) See, also, Garnishment.

Several orders of attachment against a defendant have precedence according to the time of their delivery to sheriff (Code, § 202); but if the property attached be a fund in court, and several orders be executed on same day, they will be satisfied ratably. (Code, § 207.) If attachment be discharged as having been wrongfully obtained, the liability of the sureties on the bond is for the damage which defendant may have sustained by reason of the attachment, not exceeding double the amount of the plaintiff's claim. (Code, § 198.) Chattel Mortgages - May be given by the owner of personal property, and the possession of the property remain in the mortgagor. Must be duly acknowledged and recorded in the county of the mortgagor's residence. (55 S. W. Rep. 424; 107 Ky. 620.) They are barred by five years' possession by mortgagee. Except as to purchasers having actual notice, all mortgages take effect only from the time they are lodged for record in the county clerk's office. They are foreclosed by suit in equity, and as held by a circuit court by sale under express power, but the question has not been distinctly decided by a court of last resort. See, however, distinct intimation to this effect from court of appeals in recent case of White Sewing Machine Company v. Conner, 111 Ky. 827. To same effect, see 48 S. W. 976; 58 S. W. 471; 66 S. W. 815. There is, however, a dictum to the contrary in 91 Ky. 299, based upon a statute which applies now exclusively to real estate. Mortgages of stock in trade are good against all persons as to existing stock, and good between parties as to future additions, if recorded properly where record is required.

Claim and Delivery of Personal Property. In actions for recovery of specific personal property, plaintiff may obtain immediate possession by making proper affidavit, and giving bond, with surety, in double the amount of value of property, but defendant may retain possession by giving similar bond. (Civil Code, §§ 180-193.)

Claims against Estates of Decedents May be enforced in six months after qualification of personal representative. Before suit, and before payment by representative, demand must be made of him, accompanied by affidavit of claimant, or agent, that the claim is just, has never to his knowledge or belief been paid, and that there is no offset or discount against the same, or any usury embraced therein. If any payment has been made, or there be any offset or discount against the demand, or any usury embraced therein, the affidavit must fully state the payment, offset, discount, or usury. Claims other than

a judgment or an obligation signed by the decedent must be proved by affidavit of a witness in addition to claimant's affidavit. (Kentucky Stat. §§ 3847, 3870-3872.) Settlement suit may be brought at any time.

If the personal estate is insolvent, suit may be brought by a creditor to sell real estate and settle the accounts of the personal representative. (Code of Practice, § 428.) In such event, the burial expenses of such decedent, and the costs and charges of administration, and the amount of the estate of a dead person, or of a ward, or of a person of unsound mind, committed by a court of record to his charge, and remaining in the hands of the decedent shall be paid in full before any pro rata distribution shall be made; but this preference shall not extend to a demand foreign to this State.

All other debts and liabilities are of equal dignity, except bona fide liens. (§ 3868.) The same proof required of non-residents as of residents. The affidavit may be made before any officer authorized to administer oaths. See Affidavits.

Non-residents cannot act as executors or administrators; and if, after qualification, they become non-residents, they may be removed. (§ 3846.)

Claims. Proof of. -See Proof of Claims.

Conditional Sales Of personal property are good as between the parties, but do not affect purchasers from vendee without notice. (10 Bush, 339.) But where it appears that a condition in the sale or a reservation of title to the chattel sold is in fact intended as a security for money, the courts will treat the transaction as an absolute sale, and a mortgage back, and in such case the mortgage should be recorded. (13 Bush, 430; 86 Ky. 679.)

Consignments.

Factor has no right to pledge goods of principal, but pledgee may

set off against consignor amount due to factor. (78 Ky. 42.)

Corporations. -Three or more persons may associate themselves (except in cases of banks, railroads, trust companies, insurance companies, etc., where a larger number is required) and form a corporation, but except in case of banks (Acts of 1906, ch. 44) cannot acquire powers or privileges not possessed by natural persons, except perpetual succession, possession of common seal, transferability of shares, exemption of private property of members from liability for corporate debts, establishing by-laws, rules, and regulations. The articles of incorporation are executed and recorded as deeds are. Corporations are required to file copy of articles in the office of secretary of state; and also in office of county clerk of county where principal office is to be, and such articles must be recorded in both the county clerk's office and the office of secretary of state at Frankfort. (Acts of 1906, ch. 2.) There is a general incorporation law in Kentucky for all purposes. "Private banking' i. e. the conduct of a bank by unincorporated individuals, is now prohibited. (Acts of 1906, ch. 44.) Stockholders are liable only to the extent of unpaid stock except in banks, trust companies, guaranty companies, investment companies, and insurance companies, where there is "double liability." One half of capital stock must be subscribed, to be paid as called. Board of directors, three or more, need not be residents. Two or more corporations may consolidate. (Ky. Stat. § 555; Acts of 1906, ch. 13.) Corporations not of public character are not assessed on franchise, but as other property only. (Ky. Stat. ch. 32, § 538, etc.) Both foreign and domestic corporations may hold title to land with the limitation that no corporation shall own land not necessary and proper for its legitimate business longer than five years under penalty of escheat. (Ky. Const. § 192; Ky. Stat. § 567.)

Organization Taxes. An organization tax of one tenth of one per cent. upon the authorized capital stock of any corporation organized under the laws of Kentucky since 1893 is required to be paid to the state treasurer before commencing the exercise of any corporate powers, and the receipt or statement of the treasurer should be filed with the secretary of state. (Acts of 1906, p. 208; Ky. Stat. § 4225.) A like tax must be paid upon each increase of capital stock.

License Tares. All corporations, whether domestic or foreign (excepting foreign insurance companies, building and loan associations, banks, and trust companies, and those corporations which are required to pay franchise taxes), are now required to pay an annual license tax to the State of thirty cents on each thousand dollars of capital stock represented by property owned or business done in Kentucky, provided that the annual license tax shall not be more than ten dollars. (Acts of 1906, pp. 179–183.)

Franchise Taxes. 1. (a) The following companies, in addition to other taxes, annually pay a tax on franchise to the State, and to the county, city, town, and taxing district where the franchise is exercised, viz., railway, guaranty, security, gas, water, ferry, bridge, street railway, express, electric light, electric power, telegraph, press dispatch, telephone, turnpike, palace-car, sleeping-car, dining-car, chair-car, and every other company having or exercising any special or exclusive privilege or franchise, or performing any public service. (b) The auditor, treasurer, and secretary of state constitute the board of valuation and assessment, and fix the value of the franchise, except in case of turnpike companies, and where more than one jurisdiction is entitled to share of tax, fix the place of payment of the local taxes and the apportionment. (Acts of 1906, ch. 22, art. 4.)

2. (a) Corporations above-named (but note that act omits to say so in terms) are required annually between June 30 and October 1 to make and deliver to the auditor of public accounts at Frankfort a verified report by president or other chief officer, or agent, in form prescribed by the auditor, showing the name and principal place of business, the kind of business, the amount of capital stock preferred and common, the number of shares, the amount paid for, the par and real value, the highest price at which stock has been sold within twelve months prior to June 30 at a bona fide sale, the amount of surplus, undivided profit, value of all other assets, total amount of indebtedness, amount of gross or net earnings or income of every description for twelve months preceding June 30, the amount and kind of tangible property in Kentucky, its fair cash value estimated at a price at a fair voluntary sale, and such other facts as the auditor may require. (Acts of 1906, ch. 22.) (b) Where lines of corporation extend beyond limits of State or county, statements must show length of entire lines operated, owned, leased, or controlled, in State and in each county, city, town, or taxing district, and of their line operated, controlled, leased, or owned elsewhere. Corporations organized out of the State, or organized in State conducting business in other States as well as Kentucky, must show gross and net income received in State and out of State on business done in State, and entire gross receipts of corporation in State and elsewhere, during twelve months prior to June 30. The board from all evidence before it, if the corporation be organized under the laws of this State, shall fix the value of the capital stock of the corporation, and from the amount deduct tangible property assessed in Kentucky: the remainder shall be the value of its corporated franchise subject to taxation. (Acts of 1906, ch. 22.) (c) If corporation be organized under the laws of another State the board shall fix the value of the capital stock as above provided, and determine from the amount of the gross receipts of the corporation, in this State and elsewhere, the proportion which the gross receipts in this State, within twelve months before June 30, bear to the entire gross receipts of the company. The same proportion of the value of the entire capital stock, less the assessed value of tangible property in this State shall be the correct value of the corporate

franchise for taxation in this State. (Acts of 1906.) (d) If the corporation organized under the laws of this State or some other State be a railroad, telegraph, telephone, express, sleeping-car, chair, palace, or chair-car company, the lines of which extend beyond the limits of this State, the board shall fix the value of the capital stock as above provided, and that portion of the value of the capital stock which the length of the lines operated, owned, leased, or controlled in this State bears to the total length of the lines owned, leased, controlled in this State, and elsewhere, shall be considered in fixing the value of the corporate franchise liable for taxes in this State, and such corporate franchise shall be liable to taxation in each county, incorporated city, town, or district through or into which such lines pass, or are operated, in the same proportion that the length of the line in such county, city, town, or district bears to the whole length of lines in the State, less the value of tangible property assessed in any such county, city, town, or taxing district. If any railroad or other corporation have all its lines outside Kentucky the board shall fix the value of its entire capital stock as above and apportion to Kentucky for taxation its proper proportion -not less than one per cent. of such capital stock as the value of the franchise, etc., taxable in Kentucky. (Acts of 1906, ch. 22, p. 130.) (e) The auditor immediately after the board has fixed the values shall notify the corporation of the fact, and, within thirty days after receiving notice, cause may be shown before the board for the change of valuation, and witnesses heard, and the board shall then act finally upon the application for change of valuation. (f) After the expiration of thirty days from the final determination of values the auditor is required to certify to the county clerks of the counties, when any portion of the corporate franchise in such corporation, company, or association shall be liable to local taxation, the amount thereof liable for county, city, town, or district tax, and each county clerk shall certify same to the proper collecting officer of the county, city, town, or taxing district for collection, and taxes shall be due thirty days after notice given by the collector thereof. (g) Individuals are not required to list for taxation shares in any corporation that lists and pays all taxes required of it. (h) All corporations that are required to make reports to the auditor of public accounts pay taxes due the State into the treasury, with the same penalties of failure to pay as are imposed upon defaulting individuals, unless otherwise specially provided. (1) Failure to make report as required by law is a misdemeanor for which a fine of one thousand dollars, and fifty dollars for each day, if the same is not made after October 1 of each year, is imposed. If corporation fails to make report the board may ascertain facts and make assessment at cost of corporation. () Receiver of corporation required to make report in same manner as corporation.

Railroad Companies. (a) All railroads lying in whole, or in part, in this State and all railroad bridge companies owing bridges partly within and partly without this State are required, on or before the 1st of September of each year, to return to the auditor of public accounts, under oath, the length of the railroad including the length thereof beyond the limits of the State, its length within the State and in each county, city, incorporated town, and taxing district, with the average value per mile, engines, cars, depots, and other real estate of the company and its value and where situated. If any railroad owns or operates a railroad out of the State the president or chief officer shall return such proportion of the entire value of its rolling-stock as the number of miles in the State bears to the whole number of miles operated by the company. The report must be made as of the 1st of July and filed on the 1st day of August. Failure to file subjects the president or chief officer in this State to a fine of one thousand dollars, and fifty dollars for every day after the 1st day of August that he fails to file the report. (b) The auditor, on or before the 15th day of August, lays before the railroad commission the returns made to him, and the board has authority to correct and equalize, by increase or decrease thereof, the valustions. (c) All taxes against railroad companies and railroad bridge companies are due and payable within thirty days after notice by mail that the assessment has been given by the auditor, and failure to pay the taxes subjects the company to a penalty of ten per cent. and interest at the rate of ten per cent. per annum and indictment for misdemeanor, with fine of fifty dollars per day for each day the tax remains unpaid. (d) The commonwealth may also sue for taxes, penalties, and interest in the Franklin circuit court. Any county, city, incorporated town, or taxing district may sue in any court of competent jurisdiction.

Foreign Life Insurance Companies other than Assessment. Such companies not organized under the laws of Kentucky, but doing business therein, shall on the first day of January in each year, or within thirty days thereafter, return to the auditor of public accounts a statement under oath of all premiums received, in cash or otherwise, in this State, or out of the State on business done in the State, during the year ending December 31 immediately preceding, or since the last returns were made, and pay into the treasury two dollars upon each hundred dollars of said premiums and file a statement of values with the secretary of state. (Such companies doing business in this State, on or before the first day of July in each year shall pay into the state treasury two dollars on every hundred dollars of the gross receipts of such company earned in the State during twelve months preceding the first day of July, and upon payment file a statement thereof with the secretary of state.

Foreign Building and Loan Companies.

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Foreign Insurance Companies other than Life. Such companies doing business in Kentucky shall on December 31 of each year, or within thirty days thereafter, return to the