CHAPTER 21.-DAMAGES.

SECTION 1. [Caused by death.]-That whenever the death of a person shall be caused by the wrongful act, neglect, or default, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, in respect thereof, then, and in every such case, the person who, or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. [G. S. § 1, 272.]

SEC. 2. [Action for.]-That every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries, resulting from such death, to the wife and next of kin of such deceased person, not exceeding the sum of five thousand dollars; Provided, That every such action shall be commenced within two years after the death of such person.

SEC. 3. [Provided for act to take effect May 1, 1873.]

CHAP. 21. Being chapter 15, General Statutes, 1873. Action must be brought by personal representatives of deceased. 12 Neb. 3. Husband cannot recover for death of wife. 13 Id. 286. In action by personal representa tives of deceased person, it must be alleged in petition that deceased left a widow, or next of kin, or both according to the fact. 17 Neb. 573. Amount recoverable is a question for jury. 18 Neb. 699.

CHAPTER 22.-DEAF AND DUMB INSTITUTE.

SECTION 1. [Officers interested in contracts.]-No director, officer, or agent of the institute shall be interested in any contract with the corporation, nor in the changing or exchanging of commodities of any kind whatever, nor shall any director be employed in or appointed to any office or place of emolument in said institution. [1875, § 3, 147.]

SEC. 2. [Directors - Powers - Employees.]-The said directors are vested with power to appoint or employ, and remove or discharge at pleasure a principal, matron, teacher, and agents necessary to the successful operation of the institution, and prescribe and regulate their duties, and to fix the salaries or compensation of each. [Id. § 4.]

SEC. 3. [Directors to hold property.]-To enable the said directors to execute the provisions of this act, they are authorized to receive, have, hold, and use property of every description, as well as money from any county or corporation, or from any person desiring to aid in sustaining the institution; Provided, That whatever may be conveyed or donated, as aforesaid, shall be used as directed by the grantor, or donor, if accepted, and for no other purpose. [Id. § 7.]

SEC. 4. [Object of institution.]-The object of said institution shall be to promote the intellectual, physical, and moral culture of the deaf and dumb, by a judicious and well adopted course of instruction, that they may be reclaimed from their lonely and cheerless condition, restored to society, and fitted for the discharge of the duties of life. [Id. § 8.]

SEC. 5. [Inmates-Admittance.]-All the deaf and dumb residing in Nebraska, of suitable age and capacity to receive instruction, shall be admitted into and enjoy the benefits of said institution without charge. [Id. § 9.]

SEC. 6. [Moneys, how disbursed.] All moneys in the hands of the treas urer of said institution shall be payable only upon order of the board. [Id. § 10.] SEC. 7. [Reports-Treasurer-Principal.]-The treasurer and principal shall make annual reports to the board of directors, who shall examine the same at the first meeting held in each year, as provided for in this act. [Id. § 11.]

SEC. 8. [Report to governor.]-Within ten days preceding the meeting of each regular session of the legislature, the said board shall furnish to the governor a printed report of the action of the board and an estimate of the expenses of the institution in all of its departments, together with a statement of the receipts and disbursement of funds; and during the first week of the session of the legislature at least ten copies of said report shall be delivered to each member thereof. The said report shall show: First-The names of the president and directors, secretary and treasurer, and of the principal and teachers employed, with the compensation allowed to each. Second -The names, age, and residences of the pupils and the dates of their reception into the institution. Third-The names, age, and residences of deaf mutes ascertained to be in the state, which have not attended the school. Fourth-The names and residences of all other persons in the service of the institute, and their business and compensation. Fifth -The statement of the accounts of the institute, showing the amounts of money received and the dates thereof, and its disbursements. [Id. § 12.]

SEC. 9. [Vested rights assumed by state,]—All rights inuring to, and all obligations incurred and contracts made by the corporation, incorporated under an act entitled "An act to incorporate an institute for the deaf and dumb," approved February 7, 1867, are hereby declared to be vested in and assumed by the state of Nebraska. [Id. § 13.]

СНАР. 22. "An act to provide for the government of the institute for the deaf and dumb, and for other purposes." Laws 1875, 147. The government of this institution being vested in board of public lands and buildings, and the sections of the original act, 1, 2, 5, 6, being abrogated, are omitted. See Art. V, § 19, Const. Art. VII, chap. 83, post. Certain special acts relative to erection of buildings, etc. (1871, 94; 1879, 419; 1881, 229), are also omitted. By sec. 11 of the original act (G. S. 275) this institution was located at Omaha.

CHAPTER 23-DECEDENTS.

SECTIONS 1-29. [Repealed by act taking effect March 29, 1889, Laws 1889, chap. 57.]

CHAP. 23. This chapter constitutes chap. XIV, R. S., and chap. 17, G. S. The legislature of 1889 repealed sec. tions 1-29. The repealed sections, together with decisions made while they were in force, are as follows:

SECTION 1. [Dower.]-The widow of every deceased person shall be entitled to dower, or the use, during her natural life, of one-third part of all the lands whereof her husband was seized, of all estate of inheritance at any time during the marriage, unless she is lawfully barred thereof. [Dower interest insufficient to authorize partition. 20 Neb. 181.]

SEC. 2. [Same.]-If a husband seized of an estate of inheritance in lands exchange them for other lands, his widow shall not have a dower of both, but shall have her election to be endowed of the lands given, or of those taken in exchange; and if such election be not evinced by commencement of proceedings to recover her dower of the lands given in exchange, within one year of the death of her husband, she shall be deemed to have elected to have taken her dower of the lands received in exchange.

SEC. 3. [Mortgaged lands.]—When a person seized of any estate of inheritance shall have executed a mortgage of such estate before marriage, his widow shall be entitled to dower out of the lands mortgaged, as against every person except the mortgagee, and those claiming under him.

SEC. 4. [Same.]-Where a husband shall purchase lands during coveture and shall at the same time mortgage his estate in such lands to secure the payment of the purchase money, his widow shall not be entitled to dower out of such lands, as against the mortgagee or those claiming under him, although she shall not have united in such mortgage; but she shall be entitled to dower as against all other persons.

SEC. 5. [Same.]—When, in either of the cases mentioned in the two preceding sections, the mortgagee, or those claiming under him, shall, after the death of the husband, cause the mortgaged premises to be sold by virtue of such mortgage, and any surplus shall remain after payment of the moneys due thereon, and the costs and charges of the sale, such widow shall be entitled to the interest or income of one-third part of such surplus, for her life, as dower.

SEC. 6. [Same.]—If in either of the cases above specified the heir or other person claiming under the husband shall pay and satisfy the mortgage, the amount so paid shall be deducted from the value of the laud, and the widow shall have set out to her, for her dower in the inortgaged lands, the value of one-third of the residue after such deduction.

SEC. 7. [Lands aliened by husband.]-When a widow shall be entitled to dower out of any lands which shall have been aliened by the husband in his lifetime, and such lands shall have been enhanced in value after the alienation, such lands shall be estimated in setting.out the widow's dower, according to their value at the time when they were so aliened.

SEC. 8. [Land in several counties.]—When a widow is entitled to dower in the lands of which her husband died seized, and her right to dower is not disputed by the heirs or devisees, or any person claiming under them or either of them, it may be assigned to her in whatever counties the lands may lie, by the judge of probate for the county in which the estate of the husband is settled, upon the application of the widow, or any other person interested in the lands; notice of which application shall be given to such heirs, devisees, or other persons, in such manner as the judge of probate shall direct. For the purpose of assigning such dower, the judge of probate shall Issue his warrant to three discreet and disinterested persons, authorizing and requiring them to set off the dower by metes and bounds, when it can be done without injury to the whole estate. [County court may assign dower. 18 Neb. 103.]

SEC. 9. [Setting off dower.]-The commissioners shall be sworn before a judge or justice of the peace, to the faithful discharge of their duties, and shall, as soon as may be, set off the dower according to the command of such warrant, and make return of their doings with an account of their charges and expenses, in writing, to the probate court; and the same being accepted and recorded, and an attested copy thereof filed in the office of the register of deeds of the county where the lands are situated, the dower shall remain fixed and certain, unless such confirmation be set aside or reversed on appeal; and one-half the costs of such proceedings shall be paid by the widow, and one-half by the adverse party.

SEC. 10. [Where estate cannot be divided.]-When the estate out of which dower is to be assigned consists of a mill or other tenements, which cannot be divided without damage to the whole, and in all cases where the estate cannot be divided by metes and bounds, the dower may be assigned of the rents, issues, and profits to be had and received by the widow as a tenant in common with the owners of the estate.

SEC. 11. [Widow may occupy.]-When a widow is entitled to dower in the lands of which her husband died seized, she may continue to occupy the same with the children or other heirs of the deceased, or may receive onethird part of the rents, issues, and profits thereof, so long as the heirs or others interested do not object, without having the dower assigned.

SEC. 12. [How right of dower may be barred.]-A married woman residing within this state may bar her right of dower in any estate conveyed by her husband, or by his guardian if he be a minor, by joining in a deed of conveyance, and acknowledging the same as prescribed by law, or by joining with her husband in a subsequent deed acknowledged in like manner.

SEC. 13. [Dower may be barred by jointure.]-A woman may also be barred of her dower in all the lands of her husband, by a jointure settled on her, with her assent, before the marriage, provided such jointure consists of a freehold estate in lands for the life of the wife at least, to take effect, in possession or profit, immediately on the death of the husband. [Cited 17 Neb. 379.]

SEC. 14. [How assent to be expressed.]-Such assent shall be expressed, if the woman be of full age, by her becoming a party to the conveyance by which it is settled, and if she be under age, by her joining with her father or guardian in such conveyance.

SEC. 15. [Provision in lieu of dower.]-Any pecuniary provision that shall be made for the benefit of an intended wife, and in lieu of dower, shall, if assented to as provided in the preceding section, bar her right of dower in all the lands of her husband.

SEC. 16. [Wife to elect whether to take dower or jointure.]-If any such jointure or pecuniary provision be made before marriage, and without the assent of the intended wife, or if it be made after marriage, she shall make her election before the death of her husband, whether she will take such jointure or pecuniary provision, or be endowed of the lands of her husband; but she shall not be entitled to both.

SEC. 17. [Wife to elect between dower and husband's will.]--If any lands be devised to a woman, or other provisions be made for her in the will of her husband, she shall make her election whether she will take the lands so devised of the provision so made, or whether she will be endowed of the lands of her husband; but she shall not be entitled to both, unless it plainly appears by the will to have been so intended by the testator.

TITLE TO REAL PROPERTY BY DESCENT.

DEC. 30. [Order of descent.]-When any person shall die seized of any lands, tenements, or hereditaments, or of any rights thereto, or entitled to any interest therein in fee simple, or for the life of another, not having lawfully devised the same, they shall "descend, subject to his debts, in the manner following: First-If the intestate leave no issue, one-half shall descend to his widow in absolute title, and one-half to his father and mother. Second-If the intestate shall leave only one issue, one-half shall descend to his widow in absolute title, and one-half to his issue. Third-If the intestate leave two

SEC. 18. [Same.]-When a widow shall be entitled to an election under either of the two preceding sections she shall be deemed to have elected to take such jointure, devise, or other provision, unless, within one year after the death of her husband, she shall commence proceedings for the assignment or recovery of her dower

SEC. 19. [In case of eviction to be endowed anew.]-If a woman is lawfully evicted of lands assigned to her as dower, or settled upon her as jointure, or is deprived of the provision made for her by will or otherwise, in lieu of dower, she may be endowed anew, in like manner as if such assignment, jointure, or other provision had not been made.

SEC. 20. [Aliens and non-residents.]-A woman being an alien shall not, on that account, be barred of her dower; and any woman residing out of the state shall be entitled to dower of the lands of her deceased husband, lying in this state, of which her husband died seized; and the same may be assigned to her or recovered by her, in like manner as if she and her deceased husband had been residents within the state at the time of his death. [Non-resident wife not entitled to dower. 18 Neb. 475.]

SEC. 21. [Waste..]-No woman who shall be endowed of any lands shall commit or suffer any waste on the same; but every woman so endowed shall maintain the houses and tenements, with the fences and appurtenances, in good repair, and shall be liable to the person having the next immediate inheritance therein, for all damages occasioned by any waste committed or suffered by her.

SEC. 22. [Widow entitled to dwelling-house.]-A widow who, at the time of her husband's death, shall be living therewith and not owning in her own right a residence suitable to her condition in life, may remain in the dwelling-house of her husband after his death so long as she remains a widow, without being chargeable with rent, and shall have her reasonable sustenance out of the estate for three years. [Amended 1887, chap. 33.]

SEC. 23 [Damages.]-Whenever, in any action brought for the purpose, a widow shall recover her dower, in ads of which her husband shall have died seized, she shall be entitled also to recover damages for the withholding of such dower.

SEC. 24. [Measure of Damages.]—Such damages shall be one-third part of the annual value of the mesne profits of the lands in which she shall so recover her dower, to be estimated, in a suit against the heirs of her husband, from the time of his death, and in suits against other persons, from the time of her demanding her dower of such persons.

SEC. 25. [Same.]-Such damages shall not be estimated for the use of any permanent improvements, made after the death of her husband, by his heirs, or by any person claiming title to such lands.

SEC. 26. [Damages when land is alienated by heir.]-When a widow shall recover her dower in any lands alienated by the heir of her husband, she shall be entitled to recover of such heir, in a civil action, her damages lor withholding such dower, from the time of the death of her husband to the time of the alien tion by the heir, not exceeding six years, in the whole; and the amount which she shall be entitled to recover from such heir shall be deducted from the amount she would otherwise be entitled to recover from such grantee, and any amount recovered as damages from such grantee shall be deducted from the sum she would otherwise be entitled to recover from such heir.

SEC. 27. [Assignment of dower a bar to further claim.]-When the widow shall have accepted an assignment of dower in satisfaction of her claim upon all the lands of her husband, it shall be a bar to any further claim of dower against the heir of such husband, or any grantee of such heir, or any grantee of such husband, unless such widow shall have been lawfully evicted of the lands so assigned to her as aforesaid.

SEC. 28. [Dower recovered by default or collusion.]-When a widow, not having right to dower, shall, during the infancy of the heirs of her husband, or any of them, or of any person entitled to the lands, recover dower, by the default or collusion of the guardian of such infant heir or other person, such heir or other person, so entitled, shall not be prejudiced thereby; but when he comes of full age he shall have an action against such widow, to recover the lands so rongfully awarded for dower.

SEC. 29. [Estate by curtesy.]-When any married woman seized in her own right of any estate of inherit ance in lands shall die leaving no issue, the lands shall descend to her surviving husband during his natural lifetime as tenant by curtesy, and after his decease, to her father. If she shall have no father, her estate shall descend to her mother. If she shall have no father, nor mother, her estate shall descend in equal shares to her brothers and sisters and to the children of any deceased brother or sister, by right of representation; Provided, That if the wife at her death shall have issue by any former husband to whom the estate might descend, such issue shall take so much of the same as has not come to her as a gift from her surviving husband, discharged from right of the surviving husband to hold the same as tenant by curtesy; Provided, That if the wife at her death shall have issue by her surviving husband alone, or if she have issue by a former husband and issue also by her survivIng husband, then the surviving husband on the death of his wife shall hold as tenant by curtesy only one-third interest in the inheritance of his own issue by said deceased wife. [Amended 1887, chap. 34. A wife owning real estate in her own right leased the same and died before the expiration of the lease. A creditor of the husband brought suit, obtained judgment, and sold the husband's estate by curtesy in the demised premises. Held, That the purchaser was not entitled to possession of the premises until the lease had expired. 8 Neb. 525. Application ⚫ of statute as it existed prior to amendment of 1887; stated 24 Neb. 219.]

SEC. 30. The section to which the above is amendatory is as follows:

SEC. 30. [Order of descent.]-When any person shall die seized of any lands, tenements, or hereditaments, or ofany right thereto, or entitled to any interest therein in fee simple, or for the life of another, not having lawfully devised the same, they shall descend, subject to his debts, in the manner following: First. In equal shares to his children, and to the lawful issue of any deceased child by right of representation; and if there be no child of the intestate living at his death, his estate shall descend to all his other lineal descendants; and if all the said descendants are in the same degree of kindred to the intestate, they shall have the estate equally; otherwise they shall take according to the right of representation. Second. If he shall have no issue, his estate shall descend to his widow during her natural lifetime, and, after her decease, to his father; and if he shall have no issue nor widow, his estate shall descend to his father. Third. If he shall have no issue, nor widow, nor father, his estate shall descend in equal shares to his brothers and sisters, and to the children of any deceased brother or sister, by right of representation; Provided, That if he shall have a mother also, she shall take an equal share with his brothers and sisters. Fourth. If the intestate shall leave no issue, nor widow, nor father, and no brother nor sister living at his death, his estate shall descend to his mother, to the exclusion of the issue, if any, of the deceased brother and sister. Fifth. If the intestate shall leave no issue, nor widow, and no father, mother, brother, nor sister, his estate

or more issue, one-third shall descent to his widow in absolute title, and the residue in equal shares to his children and to the lawful issue of any deceased child by right of representation. Fourth-If the intestate leave no issue and no father, one-half shall descend to his widow in absolute title, and one-half to his mother. Fifth-If the intestate leave no issue, and no mother, one-half, shall descend to his widow in absolute title, and onehalf to his father, and in case of the death of both father and mother, their distributative share shall descend to the deceased's brothers and sisters, in equal shares, and to their lawful issue by right of representation. Sixth-If the intestate leave no widow, his estate shall descend to his children in equal shares, and to the lawful issue of any deceased child by right of representation. Seventh-If the intestate leave no issue, and no widow, all his estate shall descend to his parents, and in case of the death of either, then to the surviving parent, and in case of the death of both, in equal shares to his brothers and sisters, and to the lawful issue of any deceased brother or sister by right of representation. Eighth-If the intestate leave no issue, nor widow, and no father, mother, brother, or sister, his estate shall descend to his next of kin in equal degree; excepting when there are two or more collateral kindred in equal degree, but claiming through different ancestors, those who claim through the nearest ancestor shall be preferred; Provided, however, Ninth-If any person shall die, leaving several children, or leaving one child, and the issue of one or more other children, and any such surviving child shall die under age, and not having been married, all the estate that came to the deceased, by inheritance from such deceased parent, shall descend in equal shares to the other children of the same parent and to the issue of any such other children who shall have died, by right of representation. Tenth-If at the death of such child who shall die under age, and not having been married, all the other children of his said parent shall also be dead, and any of them shall have left issue, the estate that came to said child by inheritance from his said parent shall descend to all the issue of other children of the same parent; and if all the said issue are in the same degree of kindred to the said child, they shall share the said estate equally; otherwise they shall take according to the right of representation. Eleventh-If the intestate shall leave a widow and no kindred, his estate shall descend to such widow. Twelfth-If the intestate shall leave no widow nor kindred, his estate shall escheat to the state of Nebraska; Provided further, That the homestead, if any, left by the intestate shall descend as follows: The homestead shall be appraised by the county treasurer and county clerk and one freeholder to be appointed by the judge of the county court, all to be residents of the county in which the homestead is situate. The judge of the county court shall, within sixty days after he has been notified in writing, by any person, of the death of the deceased, and that the intestate leaves a homestead, or if the judge of the county court shall ascertain said facts from any other source, shall appoint such appraiser, and notify the county treasurer and county clerk and the appraiser appointed by said judge of the county court, in writing, to meet on a day fixed by said judge, within thirty days from the notice to meet at his office. The said appraisers shall then proceed at once to appraise the homestead of the deceased at its cash value, which appraisement shall be made and returned in writing, under oath, by said appraisers, and shall be made a part of the records of said court. In case that any of the said appraisers shall fail to meet, the said court shall appoint.

shall descend to his next of kin, in equal degree, excepting that when there are two or more collateral kindred in equal degree, but claiming through different ancestors, those who claim through the nearest ancestor shall be preferred to those claiming through an ancestor more remote; Provided, however, Sixth. If any person shall die, leaving several children, or leaving one child, and the issue of one or more other children, and any such surviving child shall die under age, and not having been married, all the estate that came to the deceased child, by inheri tance from such deceased parent, shall descend, in equal shares, to the other children of the same parent, and to the issue of any such other children who shall have died, by right of representation. Seventh. If, at the death of such child who shall die under age, and not having been married, all the other children of his said parent shall also be dead, and any of them shall have left issue, the estate that came to said child, by inheritance from his said parent, shall descend to all the issue of other children of the same parent; and if all the said issue are in the same degree of kindred to said child, they shall share the said estate equally; otherwise they shall take according to the right of representation. Eighth. If the intestate shall leave a widow, and no kindred, his estate shall descend to such widow. Ninth. If the intestate shall have no widow, nor kindred, his estate shall escheat to the people of this state. [Upon death of a tenant in fee without any heirs, his estate vests eo instanti, in the state, and the administrator of such estate can convey no title to said estate, and has no right of possession to the same to deliver. 5 Neb. 206. See Art. IX, Chap. 83, post. Husband does not inherit wife's personalty. 13 Neb. 285. See Rice v. Saxon. 28 Neb. 380.]