SEC. 86. [Credit.]-On such sale, the executor or administrator may give such length of credit, not exceeding three years, and for not more than three-fourths of the purchase money, as shall seem best calculated to produce the highest price, and shall have been directed or shall be approved by the judge of the district court, and shall secure the moneys for which credit is given, by a bond of the purchaser and by a mortgage of the premises sold.

SEC. 87. [Return of proceedings.]-The executor or administrator making any sale shall immediately make a return of his proceedings upon the order of sale in pursuance of which it is made, to the judge of the district court granting the same, who shall examine the proceedings, and may also examine such executor, or administrator, or any other person on oath, touching the same; and if he shall be of opinion that the proceedings were unfair or that the sum bid is disproportionate to the value, and that a sum exceeding such bid at least ten per cent., exclusive of the expenses of a new sale, may be obtained, he skall vacate such sale, and direct another to be had, of which notice shall be given; and the sale shall be in all respects as if no previous sale had taken place.

SEC. 88. [Confirmation of sale.]—If it shall appear to the district judge that the sale was legally made and fairly conducted, and that the sum bid was not disproportionate to the value of the property sold, or if disproportionate, that a greater sum than above specified cannot be obtained, he shall make an order confirming such sale, and directing conveyances to be executed.

SEC. 89. [Oath.]-Every executor or administrator authorized to sell real estate, as provided in this subdivision, shall, before making such sale, take and subscribe an oath before the judge of the district court, or some other officer authorized to administer oaths, that in disposing of the real estate which he is licensed to sell he will exert his best endeavors to dispose of the same in such manner as will be most for the advantage of all persons interested, which oath shall be filed with the judge of the district court before the confirmation of the sale.

SEC. 90. [Proof of notice of sale.]—An affidavit of the executor or administrator, or of some other person having knowledge of the fact, that notice of any such sale was given as provided in this subdivision, being made before the judge of the district court or some other officer authorized to administer oaths, and filed and recorded in the district court, together with a copy of the notice, shall be admitted as evidence of the time, place, and manner of giving the notice.

SEC. 91. [Adjourned sale.]—If, at the time appointed for any such sale, the executor or administrator shall deem it for the interest of all persons concerned therein that the sale shall be postponed, he may adjourn the same from time to time, not exceeding, in all, three months.

SEC. 92. [Notice-In case of such adjournment, notice thereof shall be given by a public declaration at the time and place first appointed for the sale, and if the adjournment shall be more than one day, further notice shall be given by posting or publishing the same, or both, as the time and circumstances may admit.

SEC. 93. [Sale to pay legacies.]-When a testator shall have given any legacy by will, that is effectual to pass or charge real estate, and his goods and chattels, rights and credits shall be insufficient to pay such legacy, together with his debts and the charges of administration, the executor or administrator, with the will annexed, may be licensed to sell his real estate for that purpose, in the same manner and upon the same terms and conditions as are prescribed in this subdivision, in the case of a sale for the payment of debts.

SEC. 94. [Contracts.]—If a deceased person, at the time of his death, was possessed of a contract for the purchase of land, his interest in such land and under such contract may be sold, on the application of his executor or administrator, in the same manner as if he had died seized of such land, and the same proceedings may be had for

Sec. 88. Duty of court to confirm sale. 19 Neb. 492.
SEC. 94. School land lease not a contract. 26 Neb. 313.

that purpose as are prescribed in this subdivision in respect to lands of which he died. seized, except as hereinafter provided.

SEC. 95. [Sale subject to future payments.]-Such sale shall be made subject to all payments that may thereafter become due on such contracts, and if there be any such payments thereafter to become due, such sale shall not be confirmed by the judge of the district court until the purchaser shall execute a bond to the executor or administrator for the benefit and indemnity of the person entitled to the interest of the deceased in the land so contracted for, in double the whole amount of payments thereafter to become due on such contract, with such sureties as the judge of the district court shall approve.

SEC. 96. [Conditions of bond.]-Such bond shall be conditioned that such purchaser will make all payment for such land as shall become due after the date of such sale, and will fully indemnify the executor or administrator, and the person so entitled, against all demands, costs, charges, and expenses, by reason of any covenant or agreement contained in such contract; but if there be no payment thereafter to become due on such contract, no bond shall be required of the purchaser.

SEC. 97. [Assignment of contract.]-Upon the confirmation of such sale, the executor or administrator shall execute to the purchaser an assignment of such contract, which assignment shall vest in the purchaser, his heirs and assigns, all the right, interest and title of the person entitled to the interest of the deceased in the land sold at the time of the sale, and such purchaser shall have the same rights and remedies against the vendor of such land as the deceased would have had if he were living.

SEC. 98. [Proceeds of sale.]-The proceeds of every such sale of the interest of the deceased person in lands under contract, as hereinbefore mentioned, shall be disposed of, in all respects, in the same manner as the proceeds of the sale of lands of which the deceased died seized, according to the provisions of this subdivision.

SEC. 99. [Sale to be subject to mortgages, etc.]—All sales and conveyances of land made by executors or administrators, pursuant to the provisions of this subdivision, shall be subject to all charges thereon, by mortgage or otherwise, existing at the time of the death of the testator or intestate; and in case the estate of the deceased shall be in any way liable for the amount secured by any such mortgage, or for any such charge, such sale shall not be confirmed by the judge until the purchaser shall execute a bond to the executor or administrator, as required in this subdivision in the case of the sale of a contract for the purchase of lands on which payments are to become due.

SEC. 100. [Foreign executors.]-When an executor or administrator shall be appointed in any state or territory, or in any foreign country, on the estate of any person dying out of this state, and no executor or administrator thereon shall be appointed in this state, the foreign executor or administrator 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 deceased.

SEC. 101. [Sale by foreign executor.]-Upon filing such authenticated copy of his appointment, such foreign executor or administrator may be licensed by the same court to sell real estate for the payment of debts or legacies, and charges of administration, in the same manner, and upon the same terms and conditions, as are prescribed in the case of an executor or administrator appointed in this state, excepting in the particulars in which a different provision is hereinafter made.

SEC. 102. [Need not give bond.]-When it shall appear to the court granting the license that such foreign executor or administrator is bound by sufficient surety or sureties, in the state or country in which he was appointed, to account for the proceeds of such sale for the payment of debts or legacies and charges of administration, and a copy of such bond, duly authenticated, shall be filed in such court, no further bond for that purpose shall be required of him by the court.

SEC. 100. Cited 16 Neb. 420.

SEC. 101. Cited 16 Neb. 420.

SEC. 103. [Foreign bond.]—If an authenticated copy of such bond shall not be filed, as mentioned in the preceding section, such foreign executor or administrator, before making such sale, shall give bond, with sufficient sureties, to the judge of the district court, with condition to account for and dispose of the proceeds of such sale for the payment of the debts or legacies of the deceased, and the charges of administration, according to the law of the state or country in which he was appointed.

SEC. 104. [Bond required.]-When such foreign executor or administrator is licensed to sell more than is necessary for the payment of debts, legacies, and charges of administration, as before provided for in this subdivision, he shall, before making the sale, give bond with sufficient sureties to the judge of the district court, with condition to account to him for all proceeds of the sale that shall remain after payment of the said debts, legacies, and charges, and to dispose of the same according to law.

SEC. 105. [Sale by guardian.]-When the goods, chattels, rights, and credits in the hands of the guardian of any minor, or of any idiot or insane person, or of any person under guardianship on account of excessive drinking, gaming, idleness, or debauchery, shall be insufficient to pay all the just debts of his ward, with the charges of managing his estate, the guardian may be licensed by the district court of the county in which such guardian was appointed, to sell his real estate for that purpose, in like manner and upon the same terms and conditions as are prescribed in this subdivision, in the case of a sale by an executor or administrator, except as to the particular in which a different provision is hereinafter made.

SEC. 106. [Same.]—If it shall be represented to the court that it is necessary to sell some part of the real estate of the ward, and by such partial sale the residue of the real estate or some specific piece or part thereof would be greatly injured, the court may license the sale of the whole of the estate, or of such part thereof as the court shall judge necessary, and most for the interest of all concerned.

SEC. 107. [Bond of guardian.]-The guardian shall give bond to the judge of the district court, to account for the surplus of the proceeds of the sale, in like manner as is prescribed in this subdivision in the case of a like sale by an executor or administrator.

SEC. 108. [County commissioners.]-No license shall be granted to any guardian to sell real estate of his ward, as provided in this subdivision, in any case excepting that of minors, unless the commissioners of the county of which the ward is an inhabitant, or in which he resides, shall certify to the judge of the district court in writ ing, their approbation of such proposed sale, and that they deem it necessary.

SEC. 109. [Persons interested may appear, etc.]—All those who are next of kin and heirs apparent or presumptive of the ward shall be considered as interested in the estate, and may appear and answer to the petition of the guardian, and when personal notice of the time and place of hearing the petition is required to be given, they shall be notified as persons interested according to the provisions respecting similar sales by executors and administrators, contained in this subdivision.

SEC. 110. [Foreign guardian.]—When any minor, insane person, or spendthrift, residing out of this state, shall be put under guardianship in the state 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 of any county in which there may be any real estate of the ward.

SEC. 111. [Sale.]—After filing an authenticated copy of his appointment, such foreign guardian may be licensed to sell the real estate for the payment of the debts of the ward, and the charges of managing his estate, 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 wherein a different provision is hereinafter made.

SEC. 112. [No further bond required.]-When it shall appear to the judge of the district court that the foreign guardian is bound, with sufficient surety or

sureties in the state or country where he was appointed, to account for the proceeds of such sale, and an authenticated copy of such bond shall be filed in the district court, no further bond shall be required here; otherwise he shall give bond in like manner as is prescribed in this subdivision, in case of sales by foreign executors or administrators.

SEC. 113. [When bond to be given.]-When such foreign guardian is authorized to sell more than is necessary to pay the debts and charges, he shall, before making the sale, give bond with sufficient surety or sureties to the judge of the district court, with condition to account, before such judge, for all the proceeds of the sale that shall remain after payment of the said debts and charges, and to dispose of the same according to law.

SEC. 114. [Proceeds of sale.]-In all cases of sale by an executor, administor, or guardian, of part or the whole of the real estate of his testator, intestate, or ward under a license granted by any district court, by virtue of the provisions of this subdivision, whether such executor, administrator, or guardian was appointed in this state or elsewhere, the surplus of the proceeds of the sale remaining on the final settlement of the accounts shall be considered as real estate and disposed of among the persons, and in the same proportion as the real estate would have been by the laws of this state, if it had not been sold.

SEC. 115. [Oath-Notice of proceedings.]—Every guardian, whether appointed in this state or elsewhere, when licensed to sell real estate, as provided in this subdivision, shall, before making such sale, take and subscribe an oath like that required in the same case of an executor or administrator; and notice shall be given and the proceedings shall be conducted in the like manner as is prescribed in the case of an executor or administrator; and the evidence of giving such notice may be perpetuated in the

same manner.

SEC. 116. [Objections to granting license.]-If any person shall appear and object to the granting of any license prayed for under the provisions of this subdivision, by the executor, administrator, or guardian, and if it shall appear to the court that either the petition or abjection thereto is unreasonable, the court may, in its discretion, award costs to the party prevailing, and may enforce the payment thereof.

SEC. 117. [Limitation of actions.]-No action for the recovery of any estate sold by an executor or administrator, under the provisions of this subdivision, shall be maintained by any heir or other person claiming under the deceased testator or intestate, unless it be commenced within five years next after the sale, and no action for any estate sold in like manner by a guardian shall be maintained by the ward, or by any person claiming under him, unless it be commenced within five years next after the termination of the guardianship, except as hereinafter provided.

SEC. 118. [Exceptions.]—The preceding section shall not apply to persons out of this state, nor to minors or others under any legal disability to sell at the time the right of action shall first accrue; but all such persons may commence such action at any time within five years after the removal of the disability, or their return to this state.

SEC. 119. [Irregularities not to avoid sale.]-In the case of any action relating to any estate sold by an executor, administrator, or guardian, in which an heir or person claiming under him shall contest the validity of the sale, it shall not be avoided on account of any irregularity in the proceedings, provided it shall appear: First-That the executor, administrator, or guardian was licensed to make the sale by the district court having jurisdiction. Second-That he gave a bond, which was approved by the judge of the district court, in case a bond was required upon granting a license. Third-That he took the oath prescribed in this subdivision. Fourth-That he gave notice of the time and place of the sale, as in this subdivision prescribed; and, Fifth-That the premises were sold accordingly, and the sale confirmed by the court, and that they are held by one who purchased them in good faith.

SEC. 117. Cited 16 Neb. 64.

SEC. 119. See note, sec. 75 and 18 Neb. 297.

SEC. 120. [Damages.]—If there shall be any neglect or misconduct in the proceedings of the executor, administrator, or guardian, in relation to such sale, by which any person interested in the estate shall suffer damages, such aggrieved party may recover the same in a suit on the bond, or otherwise, as the case may require.

SEC. 121. [Adverse claimants.]-If the validity of a sale made by an executor, administrator, or guardian shall be drawn in question by any person claiming adversely to the title of the deceased testator or intestate, or of the ward, or claiming under any title that is not derived from or through the deceased person or the ward, the sale shall not be held void on account of any irregularity of the proceedings, provided it shall appear that the executor, administrator, or guardian was licensed to make the sale by a district court having jurisdiction, and that he did accordingly execute and acknowledge, in legal form, a deed for the conveyance of the premises.

SEC. 122. [Liability of executor, etc.]—Any executor, administrator, or guardian who shall fraudulently sell any real estate of his testator, intestate, or ward, contrary to the provisions of this subdivision, shall be liable in double the value of the land sold, as damages, to be recovered in a civil action by the person having an estate of

inheritance therein.

WILLS.

SEC. 123. [Power to make wills.]-Every person of full age and sound mind, being seized in his own right of any lands, or any right thereto, or entitled to any interest therein descendable to his heirs, may devise and dispose of the same by his last will and testament, in writing; and all such estate not disposed of by will shall descend as the estate of an intestate, being chargeable in both cases with the payment of all debts; and any married woman may devise and dispose of any real or personal property held by her, or to which she is entitled in her own right, by her last will and testament, in writing, and may alter or revoke the same in like manner that a person under to disability may do, and subject to the same restrictions. [Amended March 3. Took effect June 3, 1881.]

SEC. 124. [Devise, how construed.]-Every devise of land, in any will hereafter made, shall be construed to convey all the estate of the devisor therein, which he could lawfully devise, unless it shall clearly appear, by the will, that the devisor intended to convey a less estate.

SEC. 125. [After acquired estate.]—Any estate, right, or interest acquired by the testator, after the making of his will, shall pass thereby in like manner as if possessed at the time of making the will, if such shall manifestly appear by the will to have been the intention of the testator.

SEC. 126. [Personal estate.]-Every person of full age and sound mind may, by his last will and testament, in writing, bequeath and dispose of all his personal estate remaining at his decease, and all his rights thereto and interest therein, and all such estate not disposed of by the will shall be administered as intestate estate.

SEC. 127. [Wills to be signed and witnessed.]-No will made within this state, except such nuncupative wills as are mentioned in the following section, shall be effectual to pass any estate, whether real or personal, nor to charge, or in any way affect the same, unless it be in writing, and signed by the testator, or by some person in his presence, and by his express direction, and attested and subscribed in the presence of the testator by two or more competent witnesses; and if the witnesses are competent at the time of attesting the execution of the will, their subsequent incompetency, from

[R.

SEC. 122. This section was originally enacted in 1861. [Laws of 1860, § 55, page 77.] Re-enacted in 1866. S. page 81.] Amended in 1867 [Laws, 12 Sess. Terr. page 23,] by adding thereto the following: "When any real estate authorized to be sold as herein before set forth, by a guardian, administrator, or executor appointed in this territory, shall lie in any other county than the one in which such guardian, administrator, or executor was appointed, such guardian, administrator, or executor, before advertising such real estate for sale, shall file for record, in the office of the probate judge of the county in which such real estate is situated, his letters of guardianship or administration, and also his license to sell such real estate, and it shall be the duty of such probate judge to record the same in his official record." This amendment has not been repealed in direct terms, but the section was re-enacted, as given in the text, in 1867. [Laws of 1867, page 123.] Quære: Whether the amendment is in force.

SEC. 123. Cited 30 Neb., 424.

SEC. 124. Cited 25 Neb., 322.