1851. children. not be included in the residuary devise contained in such § 21. A devise of the land of the testator, or of the land § 22. A devise or bequest shall extend to any real or personal estate over which the testator has a discretionary power of appointment, and to which it would apply if the estate was his own property; and shall operate as an execution of such power, unless a contrary intention shall appear by the will. 23. Where lands are devised to be sold on special or general trust, or are conveyed or devised to trustees or executors in trust to be sold generally or for any specific purpose, the purchaser shall not be bound to look to the application of the purchase money, unless so expressly required by the conveyance or devise. § 24. If any person dies leaving a child, or his wife enPretermitted ciente of a child which shall be born alive, and leaving a will, made when such person had no child living, wherein any child he might have is not provided for or mentioned, such will, except so far as it provides for the payment of the debts of the testator, shall be construed as if the devises and bequests therein had been limited to take effect in the event that the child shall die under the age of twenty-one years, unmarried and without issue. § 25. If a will is made when a testator has a child living, and a child is born afterwards, such after-born child or any descendant of his, if not provided for by any settlement, and neither provided for nor expressly excluded by the will, but only pretermitted, shall succeed to such portion of the testator's estate as he would have been entitled to if the testator had died intestate; towards raising which portion, the devisees and legatees shall, out of what is devised and bequeathed to them, contribute ratably either in kind or in money, as a court of equity in the particular case may deem most proper. But if any such after-born child or descendant dies under the age of twenty-one years, unmarried and without issue, his portion of the estate, or so much thereof as may remain unexpended in his support and education, shall revert to the person to whom it was given by the will. § 26. The preceding sections of this chapter shall not extend to any will made before this act is in force; but the validity and effect of such will shall be determined by the ! laws in force on the day before this chapter takes effect, in § 27. Wills shall be proved before, and admitted to record § 28. A writ of error, or an appeal, shall lie from the county court to the circuit court of the same county and and thence to the court of appeals, upon every order admitting a will to record, or rejecting it. The circuit court and court of appeals shall try both law and fact, but the court of appeals shall not hear or adjudge any matter of fact pertaining thereto other than such as may be certified from the circuit court. The writ of error from the circuit court shall be sued out within five years after rendering the order of probate or rejection in the county court, and from the court of appeals within one year after the final decision in the circuit court. § 29. No will shall be received in evidence, until it has been allowed and admitted to record by a county court; and its probate before such court shall be conclusive, until the same is superseded, reversed, or annulled. §30. Any such court, on being informed that a person has in his custody the will of a testator, may summon him and, by proper process, compel him to produce the same. § 31. When a will of a non-resident of this state relative to estate within this state has been proved without the same, an authenticated copy thereof and the certificate of probate thereof may be offered for probate in this state. When such copy is so offered, the court to which it is of fered shall presume, in the absence of evidence to the contrary, that the will was duly executed and admitted to probate as a will of personalty in the state or country of the testator's domicil, and shall admit such copy to probate as a will of personalty in this state. And if it appears from such copy that the will was proved in the foreign court of probate to have been so executed as to be a valid will of lands in this state by the law thereof, such copy may be admitted to probate as a will of real estate. § 32. When any will or any such authenticated copy is offered for probate and a witness attesting the same resides out of this state, or though in the state is in confinement in 1851. Probate and appointment of curator. 232 1851. another county or corporation under legal process, or is unable from sickness, age, or other infirmity to attend the court before which the same is offered, or resides at a distance of more than fifty miles, such court may cause a commission to be issued, annexed to the said will or copy, and directed to any person authorized by law to take depositions in other cases, to take his deposition. The deposition of such witness shall be taken and certified as depositions are taken in other cases; except that no notice need be given of the time and place of taking the same, unless it is in a case in which the probate is opposed by some person who has made himself a party. And the proof so given shall have the same effect as if it had been given in the court from which the commission issued. §33. A person offering or intending to offer to a county court a will for probate may obtain from the clerk of such court process directed to the proper officer of any county, requiring him to summon any person interested in such probate to appear at the next term of such court and show cause why the said will should not be admitted to record. §34 The court to which a will is offered for probate, may cause all persons interested in the probate to be summoned to appear on a certain day. §35. Any person interested in such probate may be summoned, or proceeded against by order of appearance; and to any person so interested who is an infant or of unsound mind, a guardian ad litem may be assigned as in other cases. §36. When the proceeding is taken to the circuit court, all necessary parties shall be brought before the court; and upon the demand of any one of them, a jury shall be impenneled to try which or how much of any testamentary paper produced is, or is not, the last will of the testator. If no jury be demanded, the court shall determine that question, and the final decision given shall be a bar to any other proceeding to call the probate or rejection of the will in question-subject to the right of appeal or writ of error to the court of appeals as herein before named; but nothing in this section shall preclude a court of chancery from its jurisdiction to impeach such final decision, for such reason as would give it jurisdiction over any other judgment at law. § 37. A county court may, however, without summoning any party, proceed to probate and admit the will to record or reject the same. § 38. Any person interested, who, at the time of the final decision in the circuit court, resided out of this state, and was proceeded against by order of appearance only without actual appearance or being personally served with process, and any other person interested who was not a party to the proceeding by actual appearance or being personally served with process, may, within three years after such final decision in the circuit court, by bill in chancery impeach the decision and have a re-trial of the question of probate; and either party shall be entitled to a jury for the trial thereof. An infant not a party, shall not be barred of such proceeding in chancery until twelve months after attaining full age. § 39. But no such proceeding in chancery by an infant or non-resident, for establishing or avoiding a will, shall operate further than is necessary to the rights of such infant or non-resident party, or otherwise affect the rights of any other person interested in the probate. § 40. The record of what is proved or deposed in court by witnesses on the motion to admit a will to record, and any depositions lawfully taken out of court on such motion, of witnesses who cannot be produced at a trial afterwards before a jury, may, on such trial, be admitted as evidence, to have such weight as the jury shall think it de serves. 41. Every will or authenticated copy so admitted to record by any court shall be recorded by the clerk thereof and remain in his office, except during such time as the same may be carried to another court under a subpœna duces tecum. § 42. A will may be deposited by the person making it, or any one for him, with the clerk of the county court of the county of his residence, for safe keeping, upon payment of a fee of one dollar to the clerk, who shall receive, keep, and deliver the same according to the directions on a sealed envelope. If there are no such directions, or the party entitled does not apply, the will shall be handed to and opened by the next or some succeeding county court, after the death of the testator, and there retained for probate. 1851. CHAPTER 4. OFFICE AND OFFICER. § 1. No office or post of profit, trust, or honor under this commonwealth, whether civil or military, legislative, executive, ministerial or judicial, nor the deputation thereof, in whole or in part, shall be sold or let to farm by any person holding or expecting to hold the same. Such person so selling or letting, and the person so buying or receiving the letting, or with whose knowledge the same has been bought for him by another, shall be disqualified from holding such office or post, or the deputation thereof; and upon conviction, shall be expelled therefrom. 2. Every contract or security made or obtained in violation of the preceding section shall be void, except that a bond of indemnity from a deputy and his sureties to a sher 1851. Incompatible offices. and oaths. iff, sergeant of the court of appeals, clerk, or marshal shall not be void. § 3. If any officer or deputy holding any such office or post as is mentioned in the first section of this chapter, shall be convicted of bribery, forgery, perjury, or any felony by a court of record in or out of this state, his office or post shall be vacated by such conviction; and though a pardon should be afterwards granted to him, it shall not avoid the forfeiture. § 4. All judgments rendered or acts done by such person by authority or color of his office, before his removal or such conviction, shall be good and valid, notwithstanding any thing by him done to incur a forfeiture. § 5. When a person in office shall accept another office or employment incompatible with the former office, such former office shall be vacated by the acceptance of the lat ter. § 6. A person holding an office, post, or employment under this state or the United States which is incompatible with a seat in the legislature, shall not be voted for as senator or representative until he has resigned his office, post, or employment, nor until a duplicate of his resignation has been filed in the clerk's office of the court of the county in which he resides; and all votes given for him before such resignation is so filed, shall be void. $7. The offices of justice of the peace or judge of the county court shall be deemed incompatible with that of surveyor, sheriff, deputy sheriff, coroner, constable, jailer, or assessor; as shall also the last seven with each other. The offices of justice of the peace, judge of the county court, sheriff, jailer, or coroner shall also be deemed incompatible with that of clerk or deputy clerk of a court. § 8. Where any bond is or may be required by law, with Official bonds or without penalty, from any person holding office, post, or employment under this state, or about to hold the same, or from a person who is or is about to become guardian, executor, administrator, curator, committee of an idiot or lunatic, or to assume any other like trust or employment, there shall be taken from such person and his sureties, in lieu of a bond, except where otherwise required by the revised statutes, a covenant to the commonwealth of Kentucky, in substance that the principal shall faithfully discharge the duties of the office, trust, or employment. But a bond or covenant taken in any other form shall, nevertheless, be binding on the parties thereto, according to its terms. § 9. Suits may be brought from time to time on any such covenant or bond hereafter given, in the name of the commonwealth, for her benefit or for that of any county, city, town, society, or person injured by a breach of the covenant or condition, at the proper costs of the party suing, |