RULE 7. Persons unborn take, when.

No inheritance shall descend to any person, as heir of the person last seized, unless such person shall be in life at the death of the person last seized, or shall be born within ten lunar months after the death of the person last seized.

Code, s. 1281; R. C., c. 38, Rule 7; 1823, c. 1210. Upon death of father seized of lands, his wife being then enciente, inheritance will immediately vest in child en ventre sa mere: Deal v. Sexton, 144-157. Inheritance not divested by birth of child more than ten lumar months after death of person last seized, Britton v. Miller, 63-270. Rule only applicable where person last seized has died since enactment of same, Rutherford v. Green, 37-121.

RULE 8. When widow takes as heir.

When any person shall die, leaving none who can claim as heir to him, his widow shall be deemed his heir, and as such shall inherit his estate.

Code, s. 1281; R. C., c. 38, Rule 8; 1801, c. 575, s. 1. Under rule, widow is heir only where there is no one who can claim as heir of descedant: Powers v. Kite, 83-156.

RULE 9. Illegitimate children inherit from mother.

When there shall be no legitimate issue, every illegitimate child of the mother and the descendant of any such child deceased shall be considered an heir, and as such shall inherit her estate; but such child or descendant shall not be allowed to claim, as representing such mother, any part of the estate of her kindred, either lineal or collateral.

Code, s. 1281; R. C., c. 38, Rule 10; 1799, c. 522. Person, who is legitimate, claiming under collateral kinsman of mother, excluded from any benefit under this rule: Bettis v. Avery, 140-184-which has reference only to lineal descendant from mother to illegitimate child, and not to any collateral descendant from her kindred to child as her representative, for rule excludes right to inherit, as representative of illegitimate mother, any part of estate of her kindred, either lineal or collateral, neither can illegitimate child of mother inherit where there are legitimate children: Flintham v. Holder, 16-347-and illegitimate children of mother can not inherit from legitimate children, Ibid.

Rule merely referred to in Norton v. McDevit, 122-759; Tucker v. Tucker, 110-334, 108-235; Ivey v. Granberry, 66-228.

RULE 10. Who may take from illegitimate children.

Illegitimate children shall be considered legitimate as between themselves and their representatives, and their estates shall descend accordingly in the same manner as if they had been born in wedlock.

And in case of the death of any such child or his issue without leaving issue, his estate shall descend to such person as would inherit, if all such children had been born in wedlock: Provided, that when any illegitimate child shall die without issue, his inheritance shall vest in the mother in the same manner as is provided in rule six of this chapter.

Code, s. 1281; R. C., c. 38, Rule 11. Upon death of illegitimate child, intestate, unmarried and without issue, leaving brothers and sisters born of same mother, some legitimate and others illegitimate, his real estate descends to brothers and sisters alike, in equal parts: McBride v. Patterson, 78-412-and upon death of illegitimate child, intestate and without issue, leaving legitimate sister born of same mother, real estate of such intestate descends to such sister, to exclusion of intestate's widow, Powers v. Kite, 83-156; Flintham v. Holder, 16-345. Legitimate person, who does not claim directly from brother or sister, or from issue of heirs of either, but from illegitimate first cousin, comes within neither letter nor reason of rule: Bettis v. Avery, 140-184.

Illegitimate children may inherit from each other; Flintham v. Holder,

16-345.

Persons born in slavery of slave parents, who were not legitimated by marriage of parents subsequent to war, have rights of illegitimates as between themselves: Tucker v. Tucker, 108-235-hence where there are two brothers coming under this description, and one dies leaving no issue or brother or sister, other brother inherits, Ibid.

For cases under rule before amendment, not now the law, see Ehringhaus v. Cartwright, 30-39; Sawyer v. Sawyer, 28-416, (both cases explained in McBride v. Patterson, 78-416).

Rule referred to in Tucker v. Tucker, 110-334; Arrington v. Alston,

6-326.

RULE. 11. Estate for life of another, not devised, an estate of inherit

ance.

Every estate for the life of another, not devised, shall be deemed an inheritance of the deceased owner, within the meaning and operation of this chapter.

Code, s. 1281; R. C., c. 38, Rule 12. Rule merely referred to in Batchelor v. Whitaker, 88-356.

RULE 12. Seizin defined.

Every person, in whom a seizin is required by any of the provisions of this chapter, shall be deemed to have been seized, if he may have had any right, title or interest in the inheritance.

Code, s. 1281; R. C., c. 38, Rule 13. All that is required by rule for creation of new stock of inheritances is that person from whom descent claimed should have had, at time of descent cast, some right, title or interest in inheritance, whether same vested in possession or not: Early v. Early, 134-267-for under rule, neither actual nor legal seizin necessary

to make the stock in the devolution of estates, Sears v. McBride, 70-152. Rule merely referred to in Redding v. Vogt, 140-566; Weeks v. Quinn, 135-427; Boyd v. Redd, 118-685.

RULE 13. Issue of certain colored persons to inherit.

The children of colored parents born at any time before the first day of January, one thousand eight hundred and sixty-eight, of persons living together as man and wife, are hereby declared legitimate children of such parents or either one of them, with all the rights of heirs at law and next of kin, with respect to the estate or estates of any such parents, or either one of them. If such children be dead their issue shall represent them with all the rights of heirs at law and next of kin provided by this section for their deceased parents or either of them if they had been living; and the provision of this section shall apply to the estates of such children as are now deceased or otherwise.

Code, s. 1281; 1897, c. 153; 1879, c. 73. Rule is valid law as to descents after its passage: Woodward v. Blue, 103-109—and renders legitimate the children of all colored parents living together as man and wife born before Jan. 1, 1868, Ibid. Children of woman of mixed blood, whose mother was white woman, who lived with slave as wife at time of their birth, are rendered legitimate: Ibid.

Operation of rule does not extend beyond those persons occupying relation of parent and child: Tucker v. Bellamy, 98-31.

Where former slave died in 1880, seized of lands, without issue, but leaving surviving her children of brother, who died in 1860, a slave, such children incapable of taking lands by descent: Ibid.

Persons born in slavery, of slave parents, who were not legitimized by parents marrying subsequent to war, not legitimized by rule, except to extent of inheriting from parents, Tucker v. Tucker, 108-235.

Rule intended to apply to colored persons cohabiting as man and wife, who occupied such relations to each other exclusively: Branch v. Walker, 102-34 and not where slave cohabited with several women, also slaves, at same time, Ibid.

Rule operates only prospectively, and could not divest any estate theretofore acquired: Jones v. Hoggard, 108-178; Tucker v. Bellamy, 98-33. There are two essential conditions of rule, cohabitation subsisting at birth of child and paternity of party from whom property claimed is derived: Nelson v. Hunter, 140-598; Woodard v. Blue, 107-411, 103-116. Rule legitimates child of colored parents born before Jan. 1, 1868, and merely extends child's right of inheritance to estate of father, which, before this enactment, was restricted to estate of mother: Bettis v. Avery, 140-184-but does not transmit any title to such person claiming land as heir of illegitimate first cousin, Ibid. Children of slave parents, born prior to Jan. 1, 1868, whose marriage was duly legitimized as provided by section 2085 are legitimate, and can inherit lands of which father died seized: Jones v. Hoggard, 108-178-and are also entitled to inherit lands

of which mother died seized, to exclusion of children born during cohabitation of mother with another slave, which relation ceased to exist prior to emancipation, Ibid.

The fact of cohabitation furnishes presumptive evidence that child is issue of persons living together as man and wife: Erwin v. Bailey, 123-635; Woodward v. Blue, 107-411, 103-109-yet presumption of legitimacy may be rebutted, Ibid-and to repel inference of paternity, same stringent rules do not apply as in cases of established legal marriage, Woodward v. Blue, 107-411, 103-109.

CHAPTER 31.

DIVORCE AND ALIMONY.

1557. Jurisdiction. The superior court shall have jurisdiction of complaints for divorce and alimony, or either.

Code, s. 1282; 1868-9, c. 93, s. 45. “Alimony'' defined: Taylor v. Taylor, 93-418. Superior court in term time alone has jurisdiction of divorce: Barringer v. Barringer, 69-179. Action to annul marriage contract on ground of incapacity is proceeding for divorce: Lea v. Lea, 104-603-and in action for divorce where neither party has domiciled in state of forum, decree of divorce is void, Bidwell v. Bidwell, 139-402-though both parties may have appeared and voluntarily submitted themselves to jurisdiction of court, Ibid.

As bearing upon section, see Gilmore v. Gilmore, 58-284; Williamson v. Williams, 56-448.

FOREIGN DIVORCES. Where one party to the marital relation is resident here and other party obtains divorce in foreign state of which he is resident, such divorce is invalid here unless personal service within the forum has been made upon defendant resident here: Bidwell v. Bidwell, 139-402; Harris v. Harris, 115-587; Arrington v. Arrington, 102510; Davidson v. Sharpe, 28-14; Irby v. Wilson, 21-568-or unless defendant appears and answers, Bidwell v. Bidwell, 139-402; Arrington v. Arrington, 102-491. The better doctrine now seems to be that where domicile of plaintiff has been acquired in good faith and not in fraud or in violation of some law of a former domicile, his divorce granted by foreign state, being the state of his domicile, should be recognized as binding even though only constructive service of summons has been made upon defendant here: Bidwell v. Bidwell, 139-409 (dictum).

Foreign divorce obtained by wife, resident of foreign state, against husband domiciled here, without personal service of summons upon him, is a nullity in this state, both as to relation of parties and as to custody of a child domiciled with its father at time of proceeding: Harris v. Harris, 115-587.

1558. Bond for costs unnecessary. It shall not be necessary for either party to a proceeding for divorce or alimony to give any undertaking to the other party to secure such costs as such other party may recover.

Code, s. 1294; 1871-2, c. 193, s. 41. Section merely referred to in Broom v. Broom, 130-565.

1559. Venue. In all proceedings for divorce, the summons shall be returnable to the court of the county in which the applicant resides.

Code, s. 1289; 1871-2, c. 193, s. 40.

1560. What marriages may be declared void on application of either party. The superior court in term time, on application made. as by law provided, by either party to a marriage contracted contrary to the prohibitions contained in the chapter entitled Marriage, or declared void by said chapter, may declare such marriage void from the beginning, subject, nevertheless, to the proviso contained in said chapter.

Code, s. 1283; 1871-2, c. 193, s. 33. Court has power to pronounce marriage void ab initio for want of capacity in one of the parties: Setzer v. Setzer, 97-252; see also Johnson v. Kincade, 37-470-but judgment declaring marriage void ab initio will not bastardize issue, Setzer v. Setzer, 97-252. Marriage with declared lunatic is void ab initio: Sims v. Sims, 121-297; Smith v. Morehead, 59-362; Crump v. Morgan, 38-91; Johnson v. Kincade, 37-470; Gathings v. Williams, 27-487.

Where the validity of a divorce has been established by a decree of a competent court, having full jurisdiction, plaintiff is estopped from setting up defenses which have been or could have been passed upon in that cause: Bidwell v. Bidwell, 139-402.

Marriage void on account of lunacy can not be cured by cohabitaton after restoration: Sims v. Sims, 121-297; Crump v. Morgan, 38-91-being a nullity, such marriage can only be remidied by proceedings to set aside requisition of lunacy or by a new marriage: Sims v. Sims, 121-297.

Marriages entered into by parties under legal age, being not void but voidable, can be validated by cohabitation after arrival at marriageable age, Sims v. Sims, 121-300, and cases cited.

Impotency in husband does not render a marriage by him void ab initio, but only voidable by sentence of separation, and until such sentence, it is deemed valid and subsisting: Smith v. Morehead, 59-360. Husband competent witness against wife to prove her impotency: Barringer v. Barringer, 69-179.

When fact of lunacy established, court is bound to decree marriage void, having no discretion: Crump v. Morgan, 39-91.

Suit for nullity of marriage on ground of insanity may be brought either in name of lunatic, by her guardian, or in name of guardian: Crump v. Morgan, 38-91 (decision prior to enactment of section).

Marriages between persons nearer of kin than first cousins, followed