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other freeholders in their place, who shall proceed and appraise said homestead under this provision, and any vacancy at any time shall be filled in the same way. The judge of the county court shall thereupon deduct from said appraisement the amount of incumbrance, if any, upon said homestead, and if the residue does not exceed the sum of one thousand (1,000) dollars, said homestead shall descend to the widow in absolute title, subject to the incumbrance on the same, if any; in case there is a residue after deducting the amount of the incumbrance, if any, and the one thousand dollars, it shall descend as provided in this act. And it is further provided that the widow shall have the option to retain the homestead, subject to the incumbrance, if any, by paying such share or shares as descend to other heirs, within six months from her election to retain the homestead, which shall be within sixty days after the return of the appraisal; and in case she does not so elect, the property shall be sold by the said appraisers at public sale for cash, subject to the incumbrance, if any, after giving notice by publication four consecutive weeks in some newspaper published in said county, which notice shall contain a description of the homestead and the place and terms of sale, which sale shall be conducted in the same manner as a sheriff's sale of real estate on execution. Said appraisers shall make a full return of all their doings in and about the sale, including the notice to sell, under oath, to the county judge, who shall certify all of said papers to the district court of said county, on or before the first day of the next term thereof, and said district court shall confirm or disaffirm said sale, as in cases of sale of real estate by order of said court. And in case the sale is disaffirmed said court shall order another sale. In case said sale is affirmed, the said district court shall order said appraisers to execute a deed of conveyance to the purchaser, and deliver the same to the clerk of said court who shall deliver the same, together with a certified copy of the proceedings in said district court, to the judge of the county court, and take his receipt for the same. The said county court shall at once notify the purchaser that he holds said deed for delivery to said purchaser, upon the payment of the purchase money for said real estate to said county judge by said purchaser; and in case said purchaser shall fail or neglect to pay said purchase money as above provided, within thirty days from and after he has been notified that said county court holds said deed, said purchaser shall pay all the costs of said sale and confirmation, including the expense of an attorney's fee expended in the sale and confirmation of said sale, which can be collected by any one to whom said fees are to be paid or by any one who has paid the same or any part thereof. When said purchase money has been paid to the said judge of the county court as above provided he shall at once proceed to distribute the same as follows: The first one thousand dol lars shall be paid to the widow, the residue as other personal property. Said appraisers shall receive the same fees as jurors and shall be paid out of said estate. The widow's share cannot be affected by any will of her husband, unless she consents thereto in writing, within thirty days after his will has been left with the county judge for probate, and she advised of its contents, by a certified copy of the will duly served on her by personal service, and her consent as aforesaid, filed with the county judge, who shall make it a part of the record. The same share of the real estate of the deceased wife, as provided in this act, shall be set apart to the surviving husband. All provisions made in this act, in regard to the widow of a deceased husband, shall be applicable to the surviv ing husband of the deceased wife. The widow of any deceased person shall be entitled to her distributative share of all the lands whereof her husband was seized of all estate of inheritance, at any time during the marriage, unless she joins in a deed of conveyance with her husband, or is otherwise lawfully barred; Provided, however, If the wife is insane she may be barred of her dower and interest in her husband's real estate at any time during the life of the husband by deed of her lawfully appointed guardian; Provided, That the widower of any deceased person shall be entitled to his distributative share, equal to that received by the widow, of all the lands whereof his wife was seized of all estate of inheritance at any time during the marriage, unless he joins in a deed of conveyance with his wife, or is otherwise lawfully barred. The estate of dower and curtesy are hereby abolished. [Amended 1889, chap. 57.]
Sec. 30. Murderer cannot inherit from his victim. 47 N. W. R. 700.
SEC. 31. [Illegitimate child.]-Every illegitimate child shall be considered as an heir of the person who shall, in writing, signed in the presence of a competent witness, have acknowledged himself to be the father of such child, and shall in all cases be considered as an heir of his mother, and shall inherit his or her estate in whole or in part as the case may be, in the same manner as if he had been born in lawful wedlock; but he shall not be allowed to claim, as representing his father or mother, any part of the estate of his or her kindred, either lineal or collateral, unless, before his death, his parents shall have intermarried and had other children, and his father, after such marriage, shall have acknowledged him, as aforesaid, or adopted him into his family, in which case such child and all legitimate children shall be considered as brothers and sisters, and on the death of either of them intestate, and without issue, the other shall inherit his estate, and he theirs, as herein before provided, in like manner as if all the children had been legitimate, saving to the father and mother respectively their rights in the estate of all the said children as provided hereinbefore, in like manner as if all had been legitimate.
SEC. 32. [Estate of illegitimate child.]—If any illegitimate child shall die intestate, without lawful issue, his estate shall descend to his mother, or, in case of her decease, to her heirs at law.
SEC. 33. [How degrees of kindred computed.]-The degrees of kindred shall be computed according to the rule of the civil law; and kindred of the half blood shall inherit equally with those of the whole blood, in the same degree, unless the inheritance came to the intestate by descent, devise, or gift of some one of his ancestors, in which case all those who are not of the blood of such ancestor shall be excluded from such inheritance.
SEC. 34. [Advancements.]-Any estate, real or personal, that may have been given by the intestate in his lifetime, as an advancement to any child or other lineal descendant, shall be considerd as a part of the estate of the intestate, so far as it regards the division and distribution thereof among his issue, and shall be taken by such child or other descendant towards his share of the estate of the intestate.
SEC. 35. [Same.]—If the amount of such advancement shall exceed the share of the heir so advanced, he shall be excluded from any further portion in the division and distribution of the estate, but he shall not be required to refund any part of such advancement; and if the amount so received shall be less than his share, he shall be entitled to as much more as will give him his full share of the estate of the deceased.
SEC. 36. [Same.]-If such advancement be made in real estate, the value thereof shall, for the purposes mentioned in the preceding section, be considered a part of the real estate to be divided; and, if it be in personal estate, it shall be considered a part of the personal estate; and if in either case it shall exceed the share of real and personal estate respectively, that would have come to the heir so advanced, he shall not refund any part of it, but shall receive so much less out of the other part of the estate as will make his whole share equal to those of the other heirs who are in the same degree with him.
SEC. 37. [Same.]-All gifts and grants shall be deemed to have been made in advancement, if they are expressed in the gift or grant to be so made, or if charged in writing by the intestate as an advancement, or acknowledged in writing as such by the child or other descendant.
SEC. 38. [Same.]-If the value of the estate so advanced shall be expressed in the conveyance, or in the charge thereof made by the intestate, or in the acknowledgment of the party receiving it, it shall be considered as of that value in the division and distribution of the estate; otherwise, it shall be estimated according to its value when given, as nearly as the same can be ascertained.
SEC. 39. [Same.]-If any child or lineal descendant so advanced shall die before the intestate, bearing issue, the advancement shall be taken into consideration in the division and distribution of the estate, and the amount thereof shall be allowed accord
SEC. 33. Cited 47 N. W. R. 700. 29 Neb. -. 45 N. W. R. 235.
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.
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 the 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, ai ha h N. 13 Neb. 290.
SEC. 47. Petition must be in w
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
SEC. 63. Cited 16 Neb. 64.