CHAPTER 23.-DECEDENTS.

2514 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.

2515 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.

2516 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.

2517 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.

2518 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.

2519 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 land, and the widow shall have set out to her, for her dower in the mortgaged lands, the value of one-third of the residue after such deduction.

2520 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.

2521 SEC. 8. [Land in several counties.] When a widow is entitled to dower in the lands of which her husband died siezed, 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

CHAP. 23. Chapter XIV, R. S., 56. Chap. 17, G. S., 276. Amendment made by Laws, 1889, chap. 57, unconstitutional. 37 Neb., 340. See secs. 29a, 29b. SEC. 1. Dower interest insufficient to authorize partition. 20 Neb., 181. No dower in school land contract. 83 Id., 107. Wife has dower in land of husband sold on execution. 61 N. W. R., 640. SEC. 7. Lands of husband sold on execution is "land aliened by husband." "Enhanced in value "" appreciation by reason of improvements put thereon by alienee. Estimation of value. 61 N. W. R., 640. SEC. 8. County court may assign dower. 18 Neb., 103.

means

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 meets and bounds, when it can be done without injury to the whole estate.

2522 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 expeuses, 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.

2523 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.

2524 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 one-third part of the rents, issues, and profits thereof, so long as the heirs or others interested do not object, without having the dower assigned.

2525 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.

2526 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.

2527 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.

2528 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.

2529 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.

2530 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

SEC. 13. Cited 17 Neb., 379.

of her husband, she shall make her election whether she will take the lands so devised or 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.

2531 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.

2532 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.

2533 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.

2534 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.

2535 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 dwellinghouse 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.]

2536 SEC. 23. [Damages.] Whenever, in any action brought for the purpose, a widow shall recover her dower in lands of which her husband shall have died seized, she shall be entitled also to recover damages for the withholding of such dower.

2537 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.

2538 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.

2539 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 for withholding such dower from the time of the death of her husband to the time of the alienation 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 re

SEC. 20. Non-resident wife not entitled to dower. 18 Neb. 475.

covered as damages from such grantee shall be deducted from the sum she would otherwise be entitled to recover from such heir.

2540 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.

2541 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 wrongfully awarded for dower.

2542 SEC. 29. [Estate by curtesy.] When any married woman, seized in her own right of any estate of inheritance 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 the 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.]

2543 SEC. 29a. [Proceedings legalized.] Whereas, The legislature of the state of Nebraska did, at its twenty-first session, duly pass an act entitled An act to amend section thirty and one hundred and seventy-six of chapter twenty-three of the Compiled Statutes of the state of Nebraska of 1887, entitled "Decedents," and to repeal said original sections, and to repeal sections one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, nineteen, twenty, twenty-one, twenty-two, twenty-three, twenty-four, twenty-five, twenty-six, twenty-seven, twenty-eight and twenty-nine of chapter twenty-three of the Compiled Statutes of Nebraska of 1887, And section seventeen of chapter thirty-six of the Compiled Statutes of Nebraska of 1887, entitled "Homesteads," and all acts and parts of acts in conflict herewith, which was approved March 29th, 1889, and which is known as chapter fifty-seven of the session laws of 1889; And, Whereas, The supreme court of the state of Nebraska has by its judgment duly pronounced, declared said act to be unconstitutional and void; And,

SEC. 29. 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 curtsey 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. SECS. 29a, 296. "An act to legalize and make valid all orders, judgments, decrees and findings that have been made by any court in the state of Nebraska under and by virtue of the provisions of an act entitled An act to amend section thirty and one hundred and seventy-six of chapter twenty-three of the Compiled Statutes of the state of Nebraska of 1887, entitled "Decedents," and to repeal said original sections and to repeal sections one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve thirteen. fourteen, fifteen, sixteen, seventeen, eighteen, nineteen, twenty, twenty-one, twenty-two, twenty-three, twenty-four, twenty-five, twenty-six, twenty-seven. twenty-eight and twenty-nine of chapter twenty-three of the Compiled Statutes of Nebraska of 1887, and section Beventeen of chapter thirty-six of the Compiled Statutes of Nebraska of 1887, entitled Homesteads," and all acts and parts of acts in conflict herewith." [Laws, 1895, chap. 32. Took effect April 9, 1895.]

Whereas, Numerous estates have been settled under and by the provisions of said act of the legislature prior to the time that the same was declared unconstitutional and void by the said supreme court: Now, therefore, all judgments, orders, decrees and findings that have been made by any court in the state of Nebraska under and by virtue of the provisions of said act, pertaining to any estate of any deceased person, be and the same is hereby legalized and made valid to the same extent and to the same purpose as though said act had not been adjudged unconstitutional by the said supreme court. [Laws, 1895, chap. 32, § 1.]

2544 SEC. 296. [Acts repealed.] All acts and parts of acts in conflict with this act are hereby repealed. [Id., § 2.]

TITLE TO REAL PROPERTY BY DESCENT.

2545 SEC. 30. [Order of descent.] When any person shall die seized of any lands, tenements, or hereditaments, or of any 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 de-cend 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 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 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. 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.

SEC. 30. 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. Murderer can inherit from his victim. 41 Id., 631.