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more of them severally. In such action the plaintiff shall not recover unless he shows

First. That no assets were delivered by the executor or administrator of the testator to his next of kin; or

Second. That the value of such assets has been recovered by some other creditor; or

Third. That such assets are not sufficient to satisfy the demand of the plaintiff.

And in the last case he shall recover only the deficiency. The whole amount which the plaintiff shall recover shall be apportioned among all the legatees of the testator in proportion to the value of their legacies respectively, and his proportion shall only be recovered of each legatee.

SEC. 449. In an action against several next of kin or legatees jointly Apportionment for assets delivered to them, if a recovery be had against such next of of costs in an ackin or legatees, the cost of such action shall be apportioned among the tion against next several defendants in proportion to the amount recovered against each of kin or legatees.

of them.

SEC. 450. A decree against several next of kin or legatees shall be Satisfaction of satisfied as to any one of them by the payment or satisfaction of the decree by payamount recovered against such defendant.

ment.

debts of their an

SEC. 451. Heirs and devisees are liable to an action by a creditor of Heirs or devia deceased person to recover the debt of their ancestor or testator to sees liable for the the extent of the value of any real property inherited by or devised cestor or testator. to them. If such action be against the heirs, all the heirs who are liable shall be made parties to the action.

-in what cases

not liable.

SEC. 452. But the heirs are not liable for the debt, unless it appear that the personal assets of the deceased were insufficient to discharge and to what extent it, or that after due proceedings the creditor has been unable to collect the debt from the personal representatives of the deceased, or from his next of kin or legatees. If the personal assets were sufficient to pay a part of the debt, or in case a part thereof shall have been collected, the heirs of such deceased person are liable for the residue.

Section 452 not a case

where debt

SEC. 453. The section last preceding shall not affect the liability of heirs for a debt of their ancestor where such debt was by his will to affect expressly charged exclusively on the real properties descended to such charged upon real heirs, or where such debt is by the will expressly directed to be paid out of the real property descended before resorting to the personal property.

estate by will.

Preference of

SEC. 454. In cases where the next of kin, legatees, heirs, and devisees are liable for the debts of their ancestors, as herein provided, debts and definithey shall be liable therefor without other priority or preference than tion thereof. such ancestors would be. The word "debt," as used in this chapter, shall be construed to include all claims for the payment of money which survive against the personal representatives of the deceased, as provided in section four hundred and forty-four.

SEC. 455. A judgment against an heir or devisee on account of the debt of his ancestor or testator may be enforced by execution against the real property shown to have descended to the heir or devisee, and not otherwise. Such judgment shall have preference as a lien on such real property to any judgment or decree obtained against such heir or devisee on account of a debt or demand due in his own right.

SEC. 456. When it appears in the action that before the commencement thereof the heir or devisee has aliened the real property descended to him, or any part thereof, he shall be personally liable for the value of the property so aliened, and a judgment may be given against him therefor, to be enforced by execution, as if the judgment were for his own debt. No real property aliened in good faith and for a valuable consideration by an heir or devisee before action commenced against

How judgment against heir or dev

isee enforced.

When heirs or devisees personally liable.

him is liable to an execution for the debt of his ancestor or testator, or in any manner affected by the judgment therefor against such heir or devisee. Judgment SEC. 457. In an action against several heirs jointly, or several deviheirs or devises sees jointly, the amount which the plaintiff recovers must be apporjointly to be ap- tioned among all the heirs of the ancestor or devisees of the testator in portioned. proportion to the value of the real property descended or devised, and such proportion only can be recovered of each heir or devisee.

against several

Devisees not li

are assets.

SEC. 458. A devisee shall not be liable to the creditor of his testator able when there unless it appear that the personal assets of the testator and the real property descended to his heirs were insufficient to discharge the debt, or unless it appear that after due proceedings the creditor has been unable to recover the debt, or any part thereof, from the personal representatives of the testator or from his next of kin, legatees, or heirs.

Liable for deficiency only.

Two preceding sections not to afthe debt is charged upon the real property by the will.

fect a case where

Husband or wife

SEC. 459. In either of the cases specified in the section last preceding the amount of the deficiency of the personal assets, and of the real property descended, to satisfy the debt of the plaintiff, or the amount which such plaintiff may have failed to recover from the personal representatives of the testator, his next of kin, legatees, and heirs, may be recovered of the devisees of such testator, to the extent of the value of the real property devised to them respectively.

SEC. 460. The two sections last preceding shall not affect the liability of devisees for a debt of their testator where such debt was by his will expressly charged exclusively upon the real property devised, or by the terms of the will made payable by the devisee, or out of the real property devised, before resorting to the personal property or to any other real property descended or devised.

CHAPTER FORTY-FIVE.

ACTIONS TO DECLARE VOID OR DISSOLVE THE MARRIAGE CONTRACT.

Sec.

461. Husband or wife may maintain-
action.

462. What marriages absolutely void.
463. What marriages void when so de-
clared.

464. At whose action marriages declared
void.

465. At whose action marriages declared
voidable.

466. Action to declare marriage valid.
467. For what causes marriages may be

dissolved.

Sec.

468. Residence of parties.
469. Same.

470. Pleas in bar by defendant.

471. Maintenance and custody of children
pending action.

472. Judgment for maintenance for the
custody of children.

473. Power of court to modify decree.
474. Right to remarry.

SEC. 461. A husband or wife may maintain an action of an equitable may maintain ac- nature against the other for the dissolution of the marriage contract, or to have the same declared void, as provided in this chapter.

tion.

What marriages absolutely void.

clared.

SEC. 462. All marriages which are prohibited by law on account of consanguinity between the parties, or on account of either of them having a former husband or wife then living, shall, if solemnized within the district, be absolutely void.

What marriages SEC. 463. When either of the parties to a marriage shall be incapable void when so de- of making such contract or assenting thereto for want of legal age or sufficient understanding, or when the consent of either party shall be obtained by force or fraud, such marriage shall be void from the time it is so declared by the decree of a court having jurisdiction thereof. SEC. 464. A marriage may be declared void from the beginning, at marriages declared the action of either party, for any of the causes specified in section four hundred and sixty-two, and whether so declared or not shall be deemed and held to be void in any action or proceeding whatever in

At whose action

void.

1

which the same may come in question; but a marriage once declared to be valid by the judgment of a court having jurisdiction thereof, in an action for that purpose, can not afterwards be questioned for the same cause, directly or otherwise.

At whose action

SEC. 465. A marriage shall not be declared void for any of the causes specified in section four hundred and sixty-three, except at the action marriages declared or claim of the party laboring under the disability, or upon whom the voidable. force or fraud was imposed or practiced; nor at the action or claim of such party if it appears that the parties freely cohabited together as husband and wife after the party had arrived at legal age, acquired sufficient understanding, been restored to reason, freed from the force, or discovered the fraud, as the case may be.

Action to de

valid.

SEC. 466. When either husband or wife shall claim or pretend that the marriage is void or voidable, as provided in sections four hun- clare marriage dred and sixty-two and four hundred and sixty-three, the same may be declared valid and lawful at the action of the other; and in such action the court shall have power, if the pleadings and proof authorize it, to declare such marriage void from the beginning or from the time of the judgment, or that it is valid and lawful, and binding on the parties thereto.

SEC. 467. The dissolution of the marriage contract may be declared at the action of the injured party for either of the following causes: First. Impotency existing at the time of the marriage and continuing to the commencement of the action;

Second. Adultery;

Third. Conviction of felony;

Fourth. Willful desertion for the period of two years;

Fifth. Cruel and inhuman treatment calculated to impair health or endanger life;

Sixth. Habitual gross drunkenness contracted since marriage and continuing for one year prior to the commencement of the action.

For what causes marriages may be dissolved.

Residence of

SEC. 468. When a marriage has been solemnized in the district an action may be maintained to declare it void if the plaintiff is an inhab- parties. itant of the district at the commencement of the action. If the marriage has not been solemnized in the district, such action can only be maintained when the plaintiff has been an inhabitant thereof for three years prior to the commencement of the action.

-at commencement of action for

SEC. 469. In an action for the dissolution of the marriage contract the plaintiff therein must be an inhabitant of the district at the com- dissolution of marmencement of the action and for three years prior thereto, which residence shall be sufficient to give the court jurisdiction without regard to the place where the marriage was solemnized or the cause of action

arose.

riage.

Pleas in bar by

SEC. 470. In an action for the dissolution of the marriage contract on account of adultery the defendant may admit the adultery and show defendant. in bar of the action either--

First. That the act was committed by the procurement or with the connivance of the plaintiff; or,

Second. That the act had been expressly forgiven, or impliedly so, by the voluntary cohabitation of the parties after knowledge thereof; or, Third. That the plaintiff has been guilty of adultery also without the procurement or connivance of the defendant and not forgiven as provided in subdivision second of this section; or,

Fourth. That the action has not been commenced within one year after the discovery of the act by the plaintiff.

When the action is for any of the causes specified in subdivisions. third, fourth, fifth, or sixth of section four hundred and sixty-seven, the defendant may admit the charge and show in bar of the action that the act was committed by the procurement of the plaintiff, or that it has been expressly forgiven; and in case the action is founded on

Maintenance and

subdivision third of the section four hundred and sixty-seven, the defendant may also show in bar thereof that the action was not prosecuted within one year after the same occurred to the plaintiff.

SEC. 471. After the commencement of an action, and before a judg custody of children ment therein, the court or judge thereof may, in its discretion, propending action. vide by order as follows:

First. That the husband pay, or secure to be paid, to the clerk of the court such an amount of money as may be necessary to enable the wife to prosecute or defend the action, as the case may be;

Second. For the care, custody, and maintenance of the minor chil dren of the marriage during the pendency of the action;

Third. For the freedom of the wife from the control of the husband during the pendency of the action, and the court may restrain either or both parties from disposing of the property of either party pend ing the action.

Judgment for SEC. 472. Whenever a marriage shall be declared void or dissolved maintenance for the court shall have power to further decree as follows: the custody of children.

Power of court

First. For the future care and custody of the minor children of the marriage as it may deem just and proper, having due regard to the age and sex of such children, and unless otherwise manifestly improper giving the preference to the party not in fault;

Second. For the recovery of the party in fault, and not allowed the care and custody of such children, such an amount of money, in gross or installments, as may be just and proper for such party to contribute toward the nurture and education thereof;

Third. For the recovery of the party in fault such an amount of money, in gross or in installments, as may be just and proper for such party to contribute to the maintenance of the other;

Fourth. For the delivery to the wife, when she is not the party in fault, of her personal property in the possession or control of the husband at the time of giving the judgment;

Fifth. For the appointment of one or more trustees to collect, receive, expend, manage, or invest, in such manner as the court shall direct, any sum of money adjudged for the maintenance of the wife or the nurture and education of minor children committed to her care and custody:

Sixth. To change the name of the wife when she is not the party in fault.

SEC. 473. At any time after a judgment is given the court or judge to modify decree. thereof, upon the motion of either party, on notice shall have power to set aside, alter, or modify so much of the judgment as may provide for alimony or for the appointment of trustees for the care and custody of the minor children, or the nurture and education thereof, or the maintenance of either party to the action.

Right to remarry.

SEC. 474. A judgment declaring a marriage void or dissolved by the action or claim of either party shall have the effect to terminate such marriage as to both parties, except that neither party shall be capable of contracting marriage with a third person, and if he or she does so contract, shall be liable therefor as if such judgment had not been given, until the action has been heard and determined on appeal, and if no appeal be taken, the expiration of the period allowed by law to take such appeal.

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SEC. 475. Any person in possession, by himself or his tenant, of An action to dereal property, may maintain an action of an equitable nature against termine adverse another who claims an estate or interest therein adverse to him, for the purpose of determining such claim, estate, or interest.

claims.

An action to es

ries.

SEC. 476. In any case where any dispute or controversy exists, or may hereafter arise, between two or more owners of adjacent or con- tablish bounda tiguous lands in the district, concerning the boundary lines thereof, or the location of the line or lines dividing such lines, either party or any party to such dispute or controversy may bring and maintain an action of an equitable nature in the district court of the district, for the purpose of having such controversy or dispute determined, and such boundary line or lines, or dividing lines, ascertained and marked by proper monuments, upon the ground where such line or lines may be ascertained to be, and established in such action.

SEC. 477. The complaint in such action shall be sufficient if it appears pleadings. therefrom that the plaintiff and defendant or defendants are owners of adjacent lands; that there is a controversy or dispute between the parties concerning their boundary or dividing line or lines, and it shall not be necessary to set forth the nature of such dispute or controversy further than that the plaintiff shall describe the boundary or dividing line as he shall claim it to be. The defendant, in his answer, shall set forth the nature of his claim with reference to the location of the line in controversy.

mode of pro

SEC. 478. The mode of proceeding under this Act shall be analogous to that of other actions of an equitable nature: Provided, At the time ceeding thereafter. of entering the judgment fixing the true location of the disputed boundary or dividing line the court shall appoint three disinterested commissioners, one of whom shall be a practical surveyor, and shall direct the commissioners to go upon the lands of the parties and establish and mark out upon the grounds, by proper marks and monuments, the boundary or dividing line as ascertained and determined by the court in its judgment.

Oath and duties

SEC. 479. Before entering upon the discharge of their duties the commissioners shall make and file their oath, in writing, to faithfully of commissioners. and impartially perform their duties as such commissioners, and after designating the line by proper marks and monuments, they shall file, in the court and cause, a report of their doings as such commissioners, and the same shall be, when approved or confirmed by the court, a part of the judgment roll in the cause.

-report.

SEC. 480. The report of the commissioners may be confirmed by the court, upon written motion of either party to such action, whenever it shall appear to the court that the motion was served upon the adverse party two days before the presentation thereof, and that no exceptions have been filed to the report within two days after the service. If exceptions. exceptions are filed as aforesaid to the report, the exceptions may be heard with the motion to confirm, and the motion may confirm, modify, or set aside the report, as shall seem just, and in the latter case may appoint a new commission or refer the matter to the same commissioners with appropriate instructions.

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