ingly by the representatives of the heirs so advanced, in like manner as if the advancement had been made directly to them.

SEC. 40. [Title of tenant by curtesy and in dower.]—Nothing in this chapter shall affect the title of a husband as tenant by the curtesy, nor that of a widow as tenant in dower; nor shall the same affect any limitation of any estate by deed or will. SEC. 41. [Inheritance by right of representation-Posthumous children.]-Inheritance or succession by right of representation takes place when the descendants of any deceased heir take the same share or right in the estate of another person that their parents would have taken if living. Posthumous children are considered as living at the death of their parents.

SALE OF LANDS OF MINORS AND OTHER PERSONS UNDER GUARDIANSHIP, AND SECURING THE PROCEEDS FOR THEIR USE.

SEC. 42. [For what purpose sold.]-When the income of the estate of any person under guardianship, whether as a minor, insane person, or spendthrift, shall not be sufficient to maintain the ward and his family, or to educate the ward when a minor, or the children of such insane person or spendthrift, his guardian may sell his real estate for that purpose, upon obtaining a license therefor, and proceeding therein as provided in this chapter. [1867, 110.]

SEC. 43. [License for sale.]-When it shall satisfactorily appear to the court, upon the petition of any such guardian, that it would be for the benefit of his ward that his real estate, or any part thereof, should be sold, and the proceeds thereof put out at interest or invested in some productive stock, his guardian may sell the same for that purpose, upon obtaining a license therefor, and proceeding therein as hereinafter provided.

SEC. 44. [Proceeds of sale.]—If the estate is sold for the purpose mentioned in the forty-second section of this chapter, the guardian shall apply the proceeds of the sale to such purpose, so far as necessary, and shall put out the residue, if any, on interest, or invest it in the best manner in his power, until the capital shall be wanted for the maintenance of the ward and his family, for the education of the ward when a minor, or the children of such insane person or spendthrift, in which case the capital may be used for that purpose, as far as may be necessary, in like manner as if it had been personal estate of the ward.

SEC. 45. [Same.]-If the estate is sold for the purpose of putting out or investing the proceeds as provided in the forty-third section of this chapter, the guardian shall make the investment according to his best judgment, or in pursuance of any order that may be made by the district court.

the

SEC. 46. [Residue of proceeds.]-In every case of the sale of real estate, as provided in this subdivision, the residue of the proceeds, if any, remaining upon final settlement of the account of the guardianship, shall be considered as real estate of the ward, and shall be disposed of among the same persons, and in the same proportions as the real estate would have been if it had not been sold.

SEC. 47. [Petition for license to sell.]-In order to obtain a license for such sale, the guardian shall present to the district court of the county in which he was appointed guardian a petition therefor, setting forth the condition of the estate of his ward, and the facts and circumstances on which the petition is founded, tending to show the necessity or expediency of a sale, which petition shall be verified by the oath of the petitioner.

SEC. 48. [Order and its contents.]-If it shall appear to the court from such petition that it is necessary or would be beneficial to the ward that such real estate or some part of it should be sold, the court shall thereupon make an order directing the

SEC. 42. "An act for the sale of lands of minors and other persons under guardianship and securing the proceeds for their use." 1867, 110. This act is simply a re-enactment of portions of original chapter amended only to give district court jurisdiction instead of probate court as formerly. But see sec. 16, art. VI, Const. Judge may grant license to sell real estate, at chambers. 13 Neb. 290.

SEC. 47. Petition must be in writing 20 Neb. 602.

next of kin of the ward, and all persons interested in the estate, to appear before such court at a time and place therein to be specified, not less than four nor more than eight weeks from the time of making such order, to show cause why a license should not be granted for the sale of such estate.

SEC. 49. [Service of order.]-A copy of such order shall be personally served on the next of kin of such ward, and on all persons interested in the estate, at least fourteen days before the hearing of the petition, or shall be published at least three successive weeks in such newspaper circulating in the county as the court shall specify in the order.

SEC. 50. [County commissioners.]-No such license shall be granted for the sale of any real estate of a ward, excepting that of a minor, unless the commissioners of the county in which the ward is an inhabitant shall certify in writing their approbation of the proposed sale.

SEC. 51. [Proceedings before the district court.]-The judge of the district court, at the time and place appointed in such order, or at such other time as the hearing shall be adjourned to, upon proof of the due service of the order, and upon filing the certificate of approbation of the commissioners of the county when necessary, shall hear and examine the proofs and allegations of the petitioner, and of the next of kin, and of all other persons interested in the estate, who shall think proper to oppose the application.

SEC. 52. [Same.]-On such hearing, the guardian may be examined on oath and witnesses may be produced and examined by either party, and process to compel their attendance and testimony may be issued by the judge of the district court, in the same manner and with the like effect as in other cases.

SEC. 53. [License to sell.]-If, after a full examination, it shall appear to the court either that it is necessary or that it would be for the benefit of the ward that the real estate, or any part of it, should be sold, such court may grant a license therefor, specifying therein whether the sale is to be made for the maintenance of the ward and his family, or for the education of the ward or his children, or in order that the proceeds may be put out or invested as aforesaid.

SEC. 54. [Guardian shall give bond.]-Every guardian licensed to sell real estate, as aforesaid, shall, before the sale, give bond to the judge of the district court with sufficient surety or sureties, to be approved by such judge, with condition to sell the same in the manner prescribed by law for sales of real estate by executors and administrators, and to account for and dispose of the proceeds of the sale in the manner provided by law.

SEC. 55. [Oath.]-Such guardian shall also, before fixing on the time and place of sale, take and subscribe an oath in substance like that required in the succeeding subdivision to be taken by an executor, administrator, or guardian, when licensed to sell real estate pursuant to the provisions of that subdivision.

SEC. 56. [Notice of sale.]-He shall also give public notice of the time and place of sale, and shall proceed therein in like manner as is prescribed in the case of a sale by a guardian, and the evidence of the giving of such notice may be perpetuated in like manner and with the same effect as is provided in case of sale of real estate by guardians.

SEC. 57. [License in force one year.]-The license granted in pursuance of this subdivision shall be in force no more than one year after granting the same.

SEC. 58. [Foreign guardian.]-When any minor, insane person, or spendthrift, residing without this state, shall be put under guardianship in the territory or country in which he resides, and shall have no guardian appointed in this state, the foreign guardian may file an authenticated copy of his appointment in the district court in any county in which there may be any real estate of the ward.

SEC. 59. [Foreign guardian licensed to sell.]-After filing such authenticated copy of his appointment, such foreign guardian may be licensed by the district court of the same county to sell the real estate of the ward in this state, in the

same manner and upon the same terms and conditions as are prescribed in this subdivision in the case of a guardian appointed in this state, excepting in the particulars hereinafter mentioned.

SEC. 60. [Proceedings.]-Every foreign guardian so licensed to sell real estate shall take and subscribe the oath required in the like case of guardians appointed in this state, and shall give notice of the time and place of sale, and conduct the same in the manner prescribed for guardians appointed here, and may perpetuate the evidence of notice in the same manner.

SEC. 61. [Proceeds of sale-Bond.]-Upon every such sale by a foreign guardian, the proceeds of the sale, or as much thereof as may remain upon the final settlement of the accounts of the guardianship, shall be considered as real estate of the ward, and shall be disposed of among the same persons, and in the same proportions, as the real estate would have been according to the laws of this state, if it had not been sold; and such foreign guardians shall, in every case, before making the sale, give bond, with satisfactory surety or sureties, to the judge of the district court, with conditions to account for and dispose of the same accordingly.

SEC. 62. [Objections-Costs.]-If any person shall appear and object to the granting of any license prayed for under the provisions of this subdivision, and it shall appear to the court that either the petition or the objection thereto is unreasonable, said court may, in its discretion, award costs to the party prevailing, and enforce the payment thereof.

SEC. 63. [Limitation.]-No action for the recovery of any estate sold by a guardian, under the provisions of this subdivision, shall be maintained by the ward, or by any person claiming under him, unless it shall be commenced within five years next after the termination of the guardianship, excepting only that persons out of the state, and minors and others under legal disability to sue at the time when the cause of action shall accrue, may commence their action at any time within five years next after the removal of the disability, or after their return to the state.

SEC. 64. [Irregularities.]-In case of an action relating to any estate sold by a guardian, under the provisions of this subdivision, in which the ward or any person claiming under him shall contest the validity of the sale, the same shall not be avoided on account of any irregularity in the proceedings, provided it shall appear: FirstThat the guardian was licensed to make the sale by a district court of competent jurisdiction. Second-That he gave a bond which was approved by the judge of the district court, in case any bond was required by the court upon granting the license. ThirdThat he took the oath prescribed in this subdivision. Fourth-That he gave notice of the time and place of sale, as prescribed by law. Fifth-That the premises were sold accordingly, at public auction, and are held by one who purchased in good faith.

SEC. 65. [Damages.]-If, in relation to such sale, there should be any neglect or misconduct in the proceedings of the guardian, by which any person interested in the estate shall suffer damage, such aggrieved party may recover such damage in a suit on the bond of such guardian, or otherwise, as the case may require.

SEC. 66. [Adverse claimant.]-If the validity of any sale made by a guardian under the provisions of this subdivision shall be drawn in question by any person claiming adversely to the title of the ward, or claiming under any title that is not derived from or through the ward, the sale shall not be held void on account of any irregularity in the proceedings, provided it shall appear that the guardian was licensed to make the sale by the proper district court, and that he did accordingly execute and acknowledge, in legal form, a deed for the conveyance of the premises.

SALE OF LANDS FOR THE PAYMENT OF DEBTS BY EXECUTORS, ADMINISTRATORS, AND GUARDIAN.

SEC. 67. [Authority of executors.]-When the personal estate of any deceased person, in the hands of his executors or administrators, shall be insufficient to

SEO. 63. Cited 16 Neb. 64.

pay all his debts, with the charges of administering his estate, such executors or administrators may sell his real estate for that purpose, upon obtaining a license therefor, and proceeding therein in the manner hereinafter provided. [1867, 114.]

SEC. 68. [Proceedings.]—In order to obtain such license, the executor or administrator shall present a petition to the district court of the county in which he was appointed, setting forth the amount of personal real estate that has come to his hands, and how much thereof, if any, remains undisposed of; the debts outstanding against the deceased, so far as the same can be ascertained; a description of all real estate of which the testator or intestate died seized; and the condition and value of the respective portions or lots; which petition shall be verified by the oath of the party presenting the same. [Amended 1887, chap. 35.]

SEC. 69. [Order to show cause.]-If it shall appear by such petition that there is not sufficient personal estate in the hands of the executor or administrator to pay the debts outstanding against the deceased, and the expenses of administration, and that it is necessary to sell the whole or some portion of the real estate for the payment of such debts, the judge of the district court shall thereupon make an order, directing all persons interested in the estate to appear before him at a time and place therein to be specified, not less than six weeks and not more than ten weeks from the time of making such order, to show cause why a license should not be granted to the executor or administrator applying therefor, to sell so much of the real estate of the deceased as shall be necessary to pay such debts.

SEC. 70. [Service of order.]-A copy of such order to show cause shall be personally served on all persons interested in the estate, at least fourteen days before the time appointed for hearing the petition, or shall be published four successive weeks in such newspaper as the court shall order; Provided, however, If all persons interested in the estate shall signify in writing their assent to such sale, the notice may be dispensed with.*

SEC. 72. [Hearing.]—The judge of the district court, at the time and place appointed in such order, or at such other time as the hearing shall be adjourned to, upon proof of the due service or publication of a copy of the order, or upon filing the consent, in writing, to such sale, of all persons interested, shall proceed to the hearing of such petition, and if such consent be not filed, shall hear and examine the allegations and proofs of the petitioner, and of all persons interested in the estate, who shall think proper to oppose the application.

SEC. 73. [Testimony.]-The executor or administrator may be examined on oath, and winesses may be produced and examined by either party, and process to compel their attendance and testimony may be issued by the district judge in the same manner and with the like effect as in other cases.

SEC. 74. [Sale.]-If it shall appear to the court that it is necessary to sell a part of the real estate, and that by a sale of such part, the residue of the estate, or some specific part or piece thereof, would be greatly injured, said court may authorize the sale of the whole estate, or such part thereof as may be judged necessary, and most for the interest of all concerned.

SEC. 75. [Bond.]-When the executor or administrator is authorized to sell more than is necessary for the payment of debts, he shall, before the sale, give bond to the judge of the district court, with sufficient sureties, to account for all the proceeds of the sale that shall remain after the payment of the debts and charges, and to dispose of the same according to the law; and in all cases where license is granted for the sale of real estate the judge of the district court may require a further bond from the executor or administrator, when he shall deem it necessary.

SEC. 76. [Proceeds of sale.]—The proceeds of any real estate sold for the payment of debts, and charges of administration, as provided in this subdivision, shall

In numbering the sections of this chapter in the revised statutes of 1866, the section numbered 71 was omitted. SEC. 68. Petition filed in district court where administration granted. 34 Neb., 833.

SEC. 70. Unnecessary to state names in the order. 34 Neb., 833.

SEC. 75. Where bond was not given, Held, That it be given within time fixed or sale be set aside. 18 Neb., 296.

be deemed assets in the hands of the executor or administrator, in like manner as if the same had been originally part of the goods and chattels of the deceased, and the executor and administrator, and the sureties in his administration bond, shall be accountable and chargeable therefor.

SEC. 77. [Bond of persons interested in estate.]-No license to sell real estate shall be granted, if any of the persons interested in the estate shall give bond to the judge of the district court, in such sum and with such sureties as he shall direct and approve, with condition to pay all the debts, and the expenses of administration, so far as the goods and chattels, rights and credits of the deceased shall be insufficient therefor, within such time as the judge of the court shall direct.

SEC. 78. [Same.]-The bond mentioned in the preceding section shall be for the security, and may be prosecuted for the benefit of the creditors, as well as the executor or administrator.

SEC. 79. [Order of sale.]-If the judge of the district court shall be satisfied, after a full hearing upon the petition, and an examination of the proofs and allegations of the parties interested, that a sale of the whole or some portion of the real estate is necessary for the payment of valid claims against the deceased, and charges of administration, or if such sale be assented to by all persons interested, he shall thereupon make an order of sale, authorizing the executor or administrator to sell the whole, or so much and such part of the real estate described in the petition as he shall judge necessary or beneficial.

SEC. 80. [Same.]-The order shall specify the lands to be sold, and the judge of the district court may therein direct the order in which several tracts, lots, or parcels shall be sold; and if it appear that any part of such real estate has been devised, and not charged in such devise with the payment of debts, the district judge shall order that part descended to heirs to be sold before that so devised ; and if it appear that any lands devised or descended have been sold by the heirs or devisees, then the lands in their hands remaining unsold shall be ordered to be first sold.

SEC. 81. [Örder to executor.]-Upon the making of such order, and the fil ing with the judge of the district court of such bond as is required by the provisions of this subdivision, a certified copy of the order of sale shall be delivered by the judge to the executor or administrator, who shall thereupon be authorized to sell the real estate as therein directed, within one year after the making of the order, but not after tha period.

SEC. 82. [License. ]-License to sell real estate, as provided in this subdivision may extend to the reversion of the dower of the widow of a deceased person; and it such reversion be not sold with the other real estate, it may be sold after the expiration of the widow's term.

SEC. 83. [Notice of sale.]-When a sale is ordered, notice of the time and place of holding the same shall be posted up in three of the most public places in the county in which the land is situated, and shall be published in a newspaper if there be one printed in the same county, and if there be none, then in such paper as the court may direct, for three weeks successively next before such sale, in which notice the lands and tenements to be sold shall be described with common certainty.

SEC. 84. [Sale.]-Such sale shall be in the county where the lands are situated, at public vendue, between the hours of nine in the morning and the setting of the sun the same day, and said sale shall be held open for one hour within said specified time, which hour shall be stated in the notice of sale provided for in the preceding section.

SEC. 85. [Executor not to be a purchaser.]-The executor or administrator making the sale and the guardian of any minor heir of the deceased shall not directly or indirectly purchase, or be interested in the purchase of any part of the real estate so sold; and all sales made contrary to the provisions of this section shall be void; but this section shall not prohibit any such purchase by a guardian for the benefit of his ward.