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CHAPTER 12.-DECEDENTS' ESTATES.

Sec. 1124. "An act, etc., repealing sections 1 to 29, ch. 23, R. S., 1866, and amending sec. 30 of the same." 1889, p. 473. In force March 29.

1124. When any person shall die seized of any lands, tenements, or herediments, or of any rights thereto, or entitled to any interest therein in fee simple, or for the of life 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 or more issue, one-third shall descend 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 one-half to his father, and in case of the death of both father and mother, their distributive 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 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 dollars 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 surviving husband of the deceased wife. The widow of any deceased person shall be entitled to her distributive 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 distributive 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, unlesss he joins in a deed of conveyance with his wife or is otherwise lawfully barred. The estate of dower and curtesy are hereby abolished.

Wife owning real estate during her lifetime leased the same for a term of years. After her death a creditor of husband obtained judgment and sold husband's interest in said estate. Held, that the creditor only took the interest the husband had in the premises, and could not obtain possession of the premises until the expiration of the lease. 8, 527. A mere dower interest is not sufficient to authorize the person entitled thereto to partition. 20, 182 (29 N. W., 299). See 5, 206; 13, 285 (13 N. W., 401); 26, 68 (41 N. W., 1065); 28, 380 (44 N. W., 456).

Secs. 1125 to 1135 formed secs. 31 to 41, ch. 14, R. S. 1866, p. 62.

1125. 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 herein before, in like manner as if all had been legitimate.

1126. 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.

1127. 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.

1128. 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 considered 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.

1129. 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 dis

tribution 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. 1130. 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.

1131. 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.

1132. 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.

1133. 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 accordingly by the representatives of the heirs so advanced, in like manner as if the advancement had been made directly to them.

1134. 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.

1135. 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 FOR THE PAYMENT OF DEBTS BY EXECUTORS, ADMINISTRATORS, AND GUARDIANS.

Secs. 1136 to 1172 formed secs. 67 to 104, ch. 14, R. S. 1866. (Sec. 7 omitted in numbering.) 1136. When the personal estate of any deceased person, in the hands of his executors or administrators, shall be insufficient to 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.

1137. 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 1867, p. 114; 1887, p. 384.

1138. 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.

1139. 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.

1140. 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.

1141. The executor or administrator 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 district judge in the same manner and with the like effect as in other cases.

1142. 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 necesary, and most for the interest of all concerned.

1143. 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.

In all cases bond must be given. 18, 297 (25 N. W., 86).

1144. The proceeds of any real estate sold for the payment of debts, and charges of administration, as provided in this subdivision, shall 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.

1145. 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.

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