Notice of order. Order for commission. Proceeding in vacation. Summons under foreign commission. Repeal. this State, the statement shall be filed in the county where the land or any part thereof lies; otherwise in the county where the parties or some of them reside. (j) SEC. 36. The court shall order notice of such application and statement to be served on all the persons mentioned therein as adversely interested in the case and living within the State; which notice shall be served fourteen days at least before the time therein appointed for hearing the parties. (j) SEC. 37. If upon such hearing of the parties, or of the applicant alone, should no adverse party appear, and the court shall be satisfied that there is sufficient cause for taking the deposition, they shall issue a commission therefor in like manner as for taking a deposition to be used in any cause pending in the same court. (j) SEC. 38. The person who proposes to take the deposition may, at his election, file his statement in the clerk's office in vacation, and may cause notice thereof to be given to the persons therein named as adversely interested, and by serving them with an attested copy of the said statement fourteen days at least before the next term of the court, and the court may thereupon proceed to hear the parties, and to issue the commission as before provided. (j) SEC. 39. Any witness may be summoned and compelled, in like manner and under the same penalties as are prescribed in this chapter, to give his deposition in any cause pending in a court in any other State or government; which deposition may be taken before any Justice of the Peace in this State. (j) SEC. 40. An act entitled an act relative to depositions taken under commission, approved January 11th, 1855, is hereby repealed. All depositions heretofore taken under commission Certain deposi- and interrogatories, and in full compliance with the laws and tions legalized. rules of practice of the courts of the State of Florida, except the act herein repealed, shall be read upon the trial or hearing of the case in which they were taken, as if said act had been fully complied with in executing the commission. (k) 9 Fla., 254. Testimony of absent wit of felony to be taken under commission. SEC. 41. When any person is arraigned before a Circuit Court upon indictment or information, charged with a crime which nesses in cases is by law a felony, and he shall satisfy the court by his oath in writing, or by the affidavits of other credible persons, that the testimony of absent persons is material and necessary to his defence, and that such witnesses reside beyond the jurisdiction of the court, or are so sick or infirm that with diligence they cannot be procured to be in attendance at the same or the next succeeding regular or special term at which the case may be tried, it shall be lawful, and it is hereby made the duty of the Judge, upon the proper application of the accused or his attorney, and the filing of the interrogatories to be propounded to such absent witnesses, to order that a commission be issued to (j) Secs. 20, 21, 22, 23 and 24, Act of March 15, 1843. (k) Chap. 3009, Act of Feb. 27, 1877, which repeals Chap. 638, Act of Jan. 11. some competent person or persons, to take the deposition of such witnesses to be used on the trial. (k) SEC. 42. The order for the issuing of such commission may Order for be made by the Judge either in term time or in vacation, and commission. application to him for that purpose may be made in vacation as well as in term; but in such case due notice of the application shall be given to the prosecuting attorney. Such commis- Issuance of sion shall not be issued until the expiration of the time fixed commission. by law in civil cases, after the filing of direct interrogatories, unless the prosecuting attorney otherwise consent or the Judge otherwise order. (k) SEC. 43. Except as otherwise provided in the laws and rules Practice in civil providing for the filing of interrogatories and cross-interroga- cases to obtain. tories, objections and exceptions thereto, and the return and opening of the depositions in civil cases, shall be observed in criminal cases. (k) SEC. 44. All such commissions shall be issued, executed and Practice. returned in such form and under such regulations as are or may be provided by law in civil cases, except as herein provided. (k) by oral inter SEC. 45. In addition to the interrogatories and cross-inter- Examination rogatories accompanying such commission, it shall be lawful rogatories. for the prosecuting attorney or any person in his behalf to cross-examine the witnesses upon oral interrogatives; and the defendant shall have the same right by himself or his counsel; and such interrogatives shall be taken down by the commis- Oral interrogsioner or commissioners, with the answers thereto or the reasons answers. given by the witnesses for not answering. (k) atives and tion not to be read. SEC. 46. If it shall appear to the court upon the trial that When deposiany person whose deposition has been taken, has absented himself or herself by the procurement or inducement or threats of the accused, such deposition shall not be read to the jury. (k) SEC. 47. No deposition shall be used or read in evidence on When deposithe trial of any criminal case when the attendance of the wit- tion not to nesses can be procured. (k) be read. missioners for SEC. 48. The State shall not be liable for the costs or expen- costs. ses of witnesses or commissioners under such commission. (k) SEC. 49. Commissioners, taking testimony by virtue of any Fees of comcommission issuing from any of the courts of this State, shall taking tesbe entitled to five dollars for each witness examined by them, timony. said sum to be divided between the commissioners, which said By whom paid. sum shall be paid by the party at whose instance the testimony To be taxed in is taken, and shall be taxed in the bill of costs. (1) (7) Sec. 1, Chap. 1001, Act of Dec. 22, (k) Seca. 1, 2, 3, 4, 5, 6, 7 and 8, Chap3125, Act of March 11, 1879. 1859. bill of costs. 4. Portion that heirs of half- in wife's estate if there be childblood shall inherit. 5. When heirs of intestate shall take per capita, and when per stirpes. 6. Property given as advancement must be accounted for; rule of inheritance when person brings advancement into hotchpot. ren; when there are no children. 13. Distribution of estate after debts and legacies are paid to be made according to the rules of descent. 14. Aliens to inherit the same as citizens. 15. Colored persons given the 7. Rules of inheritance as to benefit of the rules of inheritance. aliens. 16. Marriage without license 8. Bastards may inherit from shall not affect rights of heirs. mother. SECTION 1. Whenever any person, having title to real estate Rule of descent. of inheritance shall die intestate as to such estate, it shall descend in parcenary to the male and female kindred in the following course, that is to say: 9 Fla., 382. 5 Fla., 542. To his children or their descendants, if any there be. If there be no children nor their descendants, then to his father. If there be no father, then to his mother, brothers and sisters and their descendants, or such of them as there be. If there be no brother nor sister, nor their descendants, the inheritance shall be divided into moieties, one of which shall go to the paternal, the other to the maternal kindred in the following course, viz: First to the grandfather. If there be no grandfather, then to the grandmother, uncles and aunts on the same side and their descendants, or such of them as there be. If there be no grandmother, uncle nor aunt, nor their descendants, then to the great-grandfathers, or great-grandfather, if there be but one. If there be no great-grandfather, then to the great-grand mothers, or great-grandmother, if there be but one, and the brothers and sisters of the grandfathers and grandmothers and their descendants, or such of them as there be. And so in other cases without end, passing to the nearest lineal male ancestors, and for the want of them to the lineal female ancestors, in the same degree, and the descendants of such male and female ancestors, or to such of them as there may be. (a) 8 Fla., 276. 7 Fla., 81. SEC. 2. Whenever an infant shall die without issue, having Exceptions in title to any real estate of inheritance derived by gift, devise or cases of infants dying without descent from the father, and there be living at the death of issue. such infant, his father, or any brother, or sister of such infant, on the part of the father or the paternal grandfather or grandmother of the infant, or any brother or sister of the father, or any descendant of any of them, then such estate shall descend and pass to the paternal kindred, without regard to the mother or other maternal kindred of such infant, in the same manner as if there had been no such mother or other maternal kindred living at the death of the infant, saving, however, to such mother any right of dower which she may have in such real estate of inheritance. And where an infant shall die without issue, having title to any real estate of inheritance derived by gift, devise or descent from the mother, and there be living 5 Fla., 542. at the death of such infant, his mother, or any brother or sister of such infant on the part of the mother, or the maternal grandfather, or the grandmother of the infant, or any brother or sister of the mother, or any descendant of any of them, then such estate shall descend and pass to the maternal kindred without regard to the father or other paternal kindred of such infant, in the same manner as if there had been no such father or other paternal kindred living at the death of the infant, saving, however, to such father the right which he may have as tenant by the courtesy in the said estate of inheritance. But no right in the inheritance shall occur to any person whatever, except in esse, other than to children of the intestate, unless they be in being, testate's death. and capable in law to take, as heirs, at the time of the intestate's death. (a) 13 Fla., 77. No one to take, at time of in testate shall SEC. 3. And where from want of issue of the intestate, and when wife or of father, mother, brothers and sisters, and their descendants, husband of inthe inheritance is before directed to go by moieties to the pa- take. ternal and maternal kindred; if there should be no such kindred on the one part, the whole shall go to the other part, and if there be no kindred either on the one part or the other, the whole shall go to the wife or husband of the intestate, and if the wife or husband be dead, it shall go to her or his kindred, in the like course as if such wife or husband had survived the intestate, and then died entitled to the estate. (a) SEC. 4. And in the cases before mentioned, where the inherit- Portion of ance is directed to pass to the ascending and collateral kin (a) Act of Nov. 17, 1829. half blood. When per stirpes. dred of the intestate, if part of such collaterals be of the whole blood to the intestate, and other part of the half blood only, those of the half blood shall inherit only half as much as those of the whole blood, but if all be of the half blood, they shall have whole portions, only giving to the ascendants (if any there be) double portions. (b) SEC. 5. And where the children of the intestate, or his capita and per mother, brothers and sisters, or his grandmother, uncles and aunts, or any of his female lineal ancestors, living with the children of his deceased lineal ancestors, male and female, in the same degree, come into the partition, they shall take per capita, that is to say, by persons; and where a part of them being dead, and a part living, the issue of those dead have right to partition, such issue shall take per stirpes or by stocks, that is to say, the shares of their deceased parents. (b) as advancement for. SEC. 6. When any of the children of the person dying intesProperty given tate shall have received from such intestate, in his lifetime, to be accounted any real or personal estate by way of advancement, and shall choose to come into the partition of the estate with the other parceners, such advancement, both of real and personal estate, shall be brought into hotchpot with the whole estate, real and personal, descended; and such party bringing into hotchpot such advancement as aforesaid, shall thereupon be entitled to his or their proper portion of the whole estate so descended, both real and personal; and the value of the estate so advanced as aforesaid, shall be estimated at the time of the advancement and not at the death of the intestate. (b) 9 Fla., 150. 10 Fla., 299. Aliens may hold real estate. Bastards may inherit from mother. Lands de scending in coparcenary. SEC. 7. Aliens of any country or nation whatever, may purchase, hold, enjoy, sell, convey, or devise any lands and tenements in this State, to the same extent and with the same right as citizens of the United States. (c) SEC. 8. In making title by descent, it shall be no bar to a party that any ancestor, through whom he derives his descent from the intestate, is or has been an alien; bastards, also, shall be capable of inheriting or of transmitting inheritance, on the part of their mother, in like manner as if they had been lawfully begotten of such mother. (d) SEC. 9. Whensoever any lands shall descend from any person dying intestate to two or more heirs, any one of whom shall be an infant, feme covert, non compos mentis, or beyond sea, and the dividend of each heir shall not exceed the value of three hundred dollars, in the opinion of any court hereinafter mentioned, it shall be lawful for the Circuit Court of the district, or for the county court of the county; or for the corporation, or city court, within whose jurisdiction such lands, or the greater quantity of them lie, to direct the sale of the said lands, and the distribution of the money arising therefrom, according to the right of each claimant: Provided, (b) Act of Nov. 17, 1829. (c) Sec. 6, Act of Feb. 17, 1833. (d) Act of Nov. 17, 1829. |