To repeal in part and amend an act entitled an act to regulate the proceedings in the Courts of Law and Equity in this State.
Sec. 1 Be it enacted by the Senate and House of Representatives of the State of Alabama, in General Assembly convened, That so much of the act of the first session of the General Assembly of this State, entitled "an act to regulate the proceedings in the Courts of Law and Equity in this State," as establishes an Inferior Court in each County in this State, to consist of five justices, shall be repealed, and cease to be in force from and after the first day of August next.
Sec. 2. And be it further enacted, That there shall be elected by joint vote of both Houses of the General Assembly, one Judge of the County Court, who shall hold his office during good behavior. The County Courts so established and organized, and the Judges thereof respectively shall be and are hereby vested, with all the powers and jurisdiction and shall perform the duties which now appertain to the County Courts in the first section of this act mentioned Powers and to the chief justice thereof, except in cases where it may be otherwise directed by this or any subsequent act each Judge shall before entering on the duties of said office before a Justice of the Peace, take and subscribe the following oath or affirmation, viz: I ________ ___________ do solemnly swear (or affirm) that I will impartially and diligently and without being influenced by fear, favor, or affection faithfully execute the office of Judge of the County Court of___________ County to the best of my skill and ability so
long as I continue to hold the same : and shall also take the other oaths required of all public officers of this State which oaths by him so subscribed, he shall cause to be filed in the clerks office of said Court; and shall enter into bond with good and sufficient security; to be approved of, and for such sum as may be directed by a Judge of the Circuit Court, not less than five thousand dollars, payable to the Governor for the time being, and his successors in office, conditioned for the faithful performance of the duties assigned them : which bond and oath shall be filed in the office of the Secretary of State, subject to be sued on by any person or persons for any injury, waste, or damage sustained in any estate, in consequence of any neglect or omission of taking good and sufficient security from guardians, executors, executrix, administrator, or administratrix,
Sec. 3. And be it further enacted, That the County Courts hereby established, shall be held by the respective Judges thereof twice a year in each county in the State each session shall continue twelve Judicial days, unless the business thereof shall sooner be completed, and said session shall commence as follows, viz:
In the county of Mobile on the second Mondays in February and June.
In the county of Baldwin on the third Mondays in January and June.
In the county of Clark on the second Mondays in January and July.
In the county of Washington on the third Mondays in January and July.
In the county of Monroe on the third Mondays in January and July.
In the county of Conecuh on the second Mondays in February and August.
In the county of Henry on the third Mondays in February and August.
In the county of Butler on the second Mondays in February and August.
In the county of Wilcox on the fourth Mondays in January and July.
In the county of Marengo on the first Mondays in January and July.
In the county of Greene on the fourth Mondays in January and July.
In the county of Perry on the second Mondays in January and July.
In the county of Dallas on the third Mondays in January and July.
In the county of Autauga on the second Mondays in January and July.
In the county of Montgomery on the first Mondays in January and July.
In the county of Bibb on the fist Mondays in January and July.
In the county of Shelby on the second Mondays in January and June.
In the county of St. Clair on the third Mondays in January and June.
In the county of Tuscaloosa on the first Mondays before the last Monday in December and June.
In the county of Jefferson on the first Mondays in January and July.
In the county of Blount on the second Mondays in February and August.
In the county of Cotaco on the second Mondays in January and July.
In the county of Franklin on the second Mondays in June and December.
In the county of Marion on the third Mondays in February and August.
In the county of Lawrence on the first Mondays in January and July.
In the county of Lauderdale on the fourth Mondays in January and July.
In the county of Limestone on the third Mondays in January and July.
In the county of Jackson on the second Mondays in February and August.
In the county of Madison on the fourth Mondays in January and July.
In the county of Pickens or the second Mondays in December and June.
And all process returnable to the next terms of any of the present county courts, shall be returned to the first terms of the courts established by this act respectively.
Sec. 4. And be it further enacted, That the Clerks of the inferior courts shall be Clerks of the said County Courts respectively and shall duly enter all orders and decrees made by their respective Courts or the Judge thereof, issue all citations and other process which may be necessary in proceedings before said courts, and the Judges thereof respectively they shall have custody of the records and papers of the Orphans and County Courts heretofore established in their respective counties, shall perform the several duties now appertaining to the office of Clerk of the County Court and be entitled to the fees now allowed therefor.
Sec. 5. And be it further enacted, That the Judge of each County Court shall have power within the County, either in open court or in vacation, to take the probate of wills, grants and repeal letters testamentary and letters of administration appoint and displace guardians of infants and ideots, lunatics, and persons non compos mentis, and to make all necessary orders for the issuing process and other purposes
within his jurisdiction according to such regulations as are, or may be established by law in such cases; each Judge shall by order made in open court, appoint certain days (not less than one in every period of two weeks) for the return of process in such cases as he is competent to hear and determine in vacation and on each return day shall attend at the Court House, or place appointed for holding the County Court to hear and determine such cases, all process issued in such cases shall be made returnable to the next return day, or if the party applying therefor shall so require, to some other return day or state session, if on any return day, the business then required to be acted on, shall not be completed, the Judge shall attend on the succeeding day and from day to day until the business shall be completed; but for special cause he may adjourn any part of the business to such other day as he may appoint. The Clerk of the court and Sheriff shall attend the sittings of the Judge on return days as well as at stated sessions.
Sec. 6. And be it further enacted, That in all cases where it may be necessary to have any matter depending before any of said courts, or the Judge thereof on any return day, tried by a jury, the Sheriff by order of the Judge shall forth with summon and impanel a jury.
Sec. 7. And be it further enacted, That where any person may have died, having no known place of residence within any county of this state, his or her will may be proved and letters testamentary or of administration thereon granted in the county where the lands devised or any part thereof lie; or the will may be proved, and letters testamentary granted, or administration may be granted in any county where the goods and chattels, and debtors, or any part thereof of such testator or intestate may be.
Sec. 8. And be it further enacted, That on application for the probate of any will, or for letters of administration the Clerk shall issue a citation requiring the Sheriff to summon the widow and next of kindred of the deceased, to appear at so he return day in said process named (or appear at the next stated session) and show if they have any thing to allege against such application and subpoenas for such witnesses as the applicant may name on the return of such process, executed on the proper parties a reasonable time before the return day thereof (allowing one day for every twenty miles he, she or they may reside from the place of holding the court, or on satisfactory proof that the deceased has no widow or kindred resident in the state, the application may be heard and determined: the court at any stated session may hear and determine such applications though no citations may have been executed or issued on proof of rea-
sonable notice thereof, as aforesaid, or on proof that the deceased has no widow or kindred resident of the state.
Sec. 9 And be it further enacted, That when the validity of any will shall be contested, or doubts may arise as to its validity, or as to any fact which in the opinion of the Judge it may be necessary to have ascertained by the verdict of a jury, before awarding any order, judgment or decree, such Judge at any state session, or on any setting held in vacation according to the provisions of this act may forthwith cause a jury to be summoned and impaneled to such issues or inquire of such facts as under his direction, shall be submitted to their decision and shall cause them to be sworn in such form as the case may require.
Sec. 10. And be it further enacted, That if any of said Judges shall be informed that any will, whereof he is competent to take the probate is in possession of any person such Judge may order a citation to issue, returnable as in other cases, requiring the person so charged and all others who may have possession of such will, to produce the same before him at or before the return day or such process and on its being duly ascertained by proof that any person or persons on whom such process has been executed conceals or improperly delays to produce such will, such Judge may commit him, her or them to jail, to remain in custody until the will shall be produced, and may make such other orders as may seem necessary in the case.
Sec. 11. And be it further enacted, That inquisitions as to ideots, lunatics or persons non compos mentis, may be ordered in vacation or in open court and made returnable as process of citation on sufficient cause shewn the Judge may order any such inquisition to be had before him, in other respects the same proceeding shall be had thereon as heretofore.
Sec. 12. And be it further enacted, That before issuing letters testamentary, or letters or administration with the will annexed, such Executor or Executrix, or Administrator, or Administratrix with the will annexed, shall take and the Judge shall administer the following oath viz: -You swear that the writing which has been admitted to be recorded as the last will of_______________ contains the true last will of said_______________ as far as you know or believe, and that you will well and truly execute said will according to law, and the directions thereof as far as the goods and chattels, rights and credits of the said will extend, and that you will return a true inventory of all said goods, chattels, and credits so far as they may come to your knowledge a true account of sales, and your said administration as required by law." And be-
fore issuing any other letters of administration, such administrator or administratrix shall take, and the Judge shall administer the following oath, viz: - - You swear that deceased died without any lawful will as far as you know or believe, and that you will well and truly administer all and singular the goods, chattels and credits of the said deceased, and returns trust inventory thereof so far as they may come to your knowledge and a just account of sales and of your said administration as required by law; but where letters testamentary or of administration shall be granted on an authenticated copy of a will, and in such other cases as in the opinion of the Judge may require exchange in the form of the oath, the oath may be administered in such form as in the opinion of the Judge is suitable to the nature of the case.
Sec. 13. And be it further enacted, That in all cases before granting letters testamentary, or of administration or guardianship, the Executor or Executrix, Administrator or Administratrix or Guardian shall enter into bond with at least two sufficient securities approved by the Judge payable to him and his successors in Office in such penalty as he may direct, which shall be at least equal to double the estimated value of the estate with a condition as follows, viz: The conditions of the above obligation is such, That whereas the above bound ___________ has been duly, appointed administrator of the estate of___________________ (or administratrix, or Executor or Executrix of the last will of_______ or guardian of __________as the case may be) now if said shall well and truly perform all the duties which are or may be, by law required of him (her or them) as such administrator ( or administratrix, executor, or execution to be void, otherwise to remain in full force, such bond shall not become void on the first recovery, and may be put in suit and prosecuted from time to time against all or any one or more of the obligors, then in the name and at the costs of any person or persons injured by a breach thereof until the whole penalty shall be recovered thereon.
Sec. 14. And be it further enacted, That any executor executrix, administrator, administratrix or guardian may be ordered to give further security on complaint of any of his her, or their securities, or of any of their representatives or when there shall appear sufficient grounds to believe, that he, she or they are about to misapply, embezzle or remove from the state the property committed to his, her or their charge on proof of gross neglect in the performance of _______ of the duties on him, her or them enjoined by
law or that his, her or their securities have become insufficient , as well as for the causes heretofore specified, and or proof that such executor or executrix, administrator or administratrix or guardian has removed from the state, or otherwise endeavored to elude the service of process on any such complaint, the same may be heard and determined, though the citation be not executed.
Sec. 15. And be it further enacted, That any executor executrix, administrator or administratrix or guardian, may by writing by him or her subscribed and delivered into the Clerks office, resign his or her authority, but in such cases he, she or they and his, her or their securities shall be bound for all the offsets or effects which shall not have been duly administered or applied or shall not be delivered to their successors respectively.
Sec. 16. And be it further enacted, That where new securities shall be ordered and taken of any executor, executrix, administrator, administratrix or guardian, the Judge may direct such alteration in the condition of the bond as the case may require and may order the original securities to be discharged entirely, or from the time of taking such new security as to him shall seem proper.
Sec. 17. And be it further enacted, That where no on shall have been admitted and qualified as executor, executrix, administrator or administratrix, within three months after the death of the deceased, or where the executorship or administration shall have become vacant, by death, resignation or removal, the Judge having jurisdiction of the case may commit the administration to the sheriff or the coroner of the county and (unless the Judge shall otherwise order) no other oath, bond of security shall be necessary to be given than the bond or oath of office already taken and given by such Sheriff or Coroner, but on his bond for the performance of the duties of his office he and his securities shall be liable for his administration, and such bond may be sued and judgment from time to time recovered thereon in the same manner as is, or may be provided by law, in case of other bonds of executors, administrators and guardians the administration so committed to any Sheriff or Coroner may at any time be revoked, on the application of any of the executors, kindred or creditors of the deceased and the executor permitted to qualify, or another administrator be appointed: during any contest about the validity of a will the infancy or absence of the executor or administrator and in such other cases not otherwise provided for as may so require, the Judge may appoint an administrator or administratrix, with such limited authority as the case may require and when the necessity of the case may require such
administrators may be granted or revoked forthwith without any citation.
Sec. 18. And be it further enacted, That when letters Testamentary, Probate of a will or letters of administration on the estate of any testator, having no known place of residence in this State at the time of his or her death, shall have been duly obtained in any other State, Territory or Country, and no personal representative of such testator or intestate, shall have been duly appointed and qualified in this State, the personal representative or representatives, so appointed out of this State, may maintain any action, demand, and receive any debt and shall be entitled to all the rights and privileges which he, she or they could have done or would have had, if duly appointed and qualified within this state: Provided always that before the rendiction of judgment in any such action there shall be produced in court where the same is pending a copy of such letters Testamentary, Probate or Letters of administration duly authenticated according to the Laws of the United States in such cases, and the certificate of the clerk of the county court of some county in this State, that such certificate has been duly recorded in his office, and in default of such proof, the court may direct a non-suit to be entered and provided further, that such foreign representative or representatives shall not be entitled to receive any money so recovered, or any money due to him, her, or them, in such right until the copy of the letters Testamentary, Probate, or letters or administration shall have been recorded as aforesaid, and then shall have been deposited in the clerks office of the county court of the County where such judgment shall have been recorded, or of the county in which the debtor or debtors may reside a bond in such penalty as the Judge of said county court may direct, payable to him and his successors in office and with such obligors thereto, as he may approve, conditioned, that such representative or representatives shall faithfully administer and apply according to law all monies and effects received by him, her or them in right of such testator or intestate from any person or persons in this State, and on such bonds, suits may be brought and judgments recovered as in other cases.
Sec. 19. And be it further enacted, That where any suit may have been commenced on behalf of or against the personal representative or representatives of any testator or intestate, the same may be prosecuted by, or against any person or persons who may afterwards succeed to the administration and executorship, such person or persons may at any time be made parties on motion and the cause shall proceed in the same manner, and judgment therein, be in all
respects as effectual, as if the same were prosecuted by or against the parties originally named: Where any personal representative or guardian shall be displaced, all monies due to him or her in such right, by execution or otherwise, shall be paid to his or her successor.
Sec. 20. And be it further enacted, That all bonds and recognizances, which may have been given or made payable to the Justices of any County Court, or Orphan's Court, or to the Chief Justice of such Courts heretofore established by the laws of the Mississippi Territory, or of the Alabama Territory, or of this State, shall enure and be payable to the Judge of the County Court of such county and his successors in office, for the use of the county, and suits may be prosecuted, and judgments recovered thereon, in the name of such Judge or any of his successors, against all or any one, or more of the obligors to any such bond.
Sec. 21. And be it further enacted, That when the estate of any testator or intestate shall be reported insolvent, it shall be the duty of the Judge of the county court to audit and determine on the accounts relating thereto according to the regulations heretofore prescribed for commissioners in such cases. But in cases where the whole value of the assets according to the inventory and appraisement, shall appear to be less than one hundred and fifty dollars, it shall not be necessary (unless special cause therefor appear) to publish the notification in any Gazette. Creditors may in all cases file the evidences of their claims in the Clerks office, when in the opinion of the Judge, the case so require, he may appoint commissioners as heretofore. The notification in such cases shall set forth the times and place appointed for the meeting of the commissioners: commissioners may be appointed, and if any of them refuse or fail to act, others may be appointed in their stead, at any time before the report shall be agreed on: the commissioners, within three days before the time of their first meeting shall apply at the Clerk's office for such evidences of claims as may have been there filed, and shall return the same to the office within ten days after making up their report, or after the last time appointed for meeting. Exceptions to their report, shall be heard and determined by the Judge: If no report be returned by them, as required by the order, the Judge shall appoint some time, not more than four weeks distant at which he will examine and decided on the case, and notification thereof shall be made by the clerk, by advertisement at the door of the Court-House.
Sec. 22. And be it further enacted, That Executors and Administrators within three months after their appointment, shall return to the clerk's office, a full inventory of all the
goods and chattels, rights and of debts due or according to the testator or intestate, at the time of his death, which have come to their possession or knowledge, setting for the times at which debts are due, and whether due by open account, promissory note, or bond; and within three months after such sale, shall in like manner return an account thereof. Inventories and accounts of sales shall be subscribed and sworn to by the executor or administrator returning the same, before the Judge, Clerk or some Justice of the Peace.
Sec. 23. And be it further enacted, That from any judgment or order final, whether in vacation or term time, appeal or write of Error, shall lie to the Circuit or Supreme Court in the same manner as upon judgments of the circuit courts.
Sec. 24. And be it further enacted, That the documents and evidence of all settlements made with executors, administrators, and guardians, shall be carefully preserved by the clerk of said county court, and the settlement entered of record, which evidence, vouchers, documents, and settlement shall be good evidence in any suit for or against such executor, administrator, or guardian, and shall not be impeached, except for fraud in obtaining the same.
Sec. 25. And be it further enacted, That when a jury may be necessary, in said county court, the sheriff shall summon Jury how such jury from the bystanders, and not otherwise. Provided, nevertheless, either of the parties shall have the right of peremptory challenge to four of the jury so summoned, and the sheriff shall supply the deficiency by summoning others in their stead.
Sec. 26. And be it further enacted, That the Judges of the county court, shall take and receive the following fees, to be paid by the party applying for the business, to wit, for granting letters testamentary, or letters of administration one and three fourths dollar; for order of appraisement one dollar; for order of sale, one dollar; for order appointing guardian, one dollar; for order removing administrator or guardian, one dollar; for order removing administrator or guardian, one dollar; for all necessary orders on writs of ad quod damnum, two dollars; for all other necessary orders in the management and settlement of estates, fifty cents each; and for all other orders in county business except where the county or state, is directly interested fifty cents each; and on all judgments , in civil cases in term time, the tax fee now allowed by law for a jury, shall be paid to said Judges : In all litigated cases, respecting wills mills, and ferries, two dollars; all of which fees shall be taxed in the bill of costs and collected by the clerks and paid over to the Judges.
Sec. 27. And be it further enacted, That it shall be the duty of the county treasurer annually to make out a full and fair report of all receipts into the treasury and of all disbursements, and deliver one copy thereof to the clerk of the county court to be kept by him for the inspection of the citizens of the county; and deliver the original to the Judge of the county court: and the Judges of said county courts may do any necessary county business not otherwise provided for by this act in vacation or term time as may best conduce to the interest of the county or state.
Sec. 28. And be it further enacted, That at every general election there shall be elected in each county in this state four commissioners of the revenue and roads who shall serve for one year, any two of whom together with the Judge of the county court shall constitute a court, to levy the county tax, to lay out and discontinue roads, have and exercise all the power in relation to roads, bridges, highways, ferries and causeways, which are at present given to and exercised by the Orphan's or County Court; and make the appointment of such county officers as by law are directed to be appointed by the county court.
Sec. 29 And be it further enacted, That on the first Mondays in April and October, in every year, said Judge of the county court and said commissioners or any two of them shall hold a court in each county for the purpose aforesaid; and continue in session until the business is completed. Provided nevertheless if said commissioners shall fail to attend on or before the third day of said term, then the judge of the said county shall proceed to levy the tax and appoint the officers required by law.
Sec. 30. And be it further enacted, That this act shall continue and be in force until the first day of January one thousand eight hundred and twenty three.