sold by order of the probate court in any county in the territory or state of Nebraska, on application of the guardian of any minor child, or children, or executor, or administrator, and it shall appear in any action in any court held within this state relating to the title to such land, that the record or any part of the record, of such sale is imperfect or deficient, or that such record or any part thereof, or any paper or papers, notice, affidavit, document, instrument, or any proceeding whatsoever, from the filing of the petition for license to sell until the execution of the deed to the purchaser, has been lost or destroyed by fire or otherwise, or cannot be found, the contents of such record, paper, notice, affidavit, document, instrument or other proceeding, may be proved in the same manner as in case of other lost instruments or papers, by secondary evidence, and when so proved, they shall have the same effect as if proven by the production of the original record, paper, notice, affidavit, document, instrument, or other proceedings, or by a duly certified copy thereof. [G. S. § 1, 271.1

SEC. 40. [Same-Bonds of guardians, etc.]-When in such action it shall appear, that the record, or any bond, paper, instrument, or other proceeding connected with the appointments of the guardian, executor, or administrator, by whom such sale was made, has been lost or destroyed by fire or otherwise, or cannot be found, the contents thereof may be proven in the manner and with the effect prescribed in section one of this act, as to the matters therein provided for. [Id. § 2.

SEC. 41. [Perpetuating testimony.]-The testimony of any witness, as to any matter or thing mentioned in this act, may be perpetuated and shall be received and admitted, in any action aforesaid, and with the effect prescribed in this act in the same manner as prescribed by law in other cases. [là. § 3.]

SEC. 42. [Appeals in probate matters.]-In all matters of probate jurisdiction, appeals shall be allowed from any final order, judgment or decree of the county court, to the district court by any person against whom any such order, judgment or decree may be made, or who may be effected thereby. [1881 § 1, 227.] SEC. 43. [When taken. All appeals shall be taken within thirty days after the decision complained of is made. [Id. § 2.]

SEC. 44. [Bond-Cost-Attorney's fee.]-Every party so appealing shall give bond in such sum as the court shall direct, with two or more good and sufficient sureties, to be approved by the court, conditioned, that the appellant will prosecute such appeal to affect without unnecessary delay, and pay all debts, damages and costs that may be adjudged against him. The bond shall be filed within thirty days from the rendition of such decision. But an executor, administrator, guardian, or guardian ad litem, shall not be required to enter into bond in order to enable him to an appeal. If it shall appear to the court that such appeal was taken vexatiously or for delay, the court shall adjudge that the appellant shall pay the costs thereof, including an attorney's fee to the adverse party, the court to fix the amount thereof, and said bond shall be liable therefor in cases where it is required. [Id. § 3.]

SEC. 45. [Effect of bond.]-After such bond has been filed, the appeal shall be granted, but shall not be a supersedeas in any other matter relating to the administration of the estate, except that from which the appeal is specially taken. [Id. § 4.]

SEC. 46. [Transcript.]-When such appeal is taken, the county court shall, on payment of his fees therefor, transmit to the clerk of the district court within ten days after perfecting such appeal, a certified transcript of the record and proceedings relative to the matter appealed from. Id. § 5.]

SEC. 47. [Proceedings in district court.]--Upon the filing of such transcript in the district court, that court shall be possessed of the action, and

lands and appointments of guardians, executors, and administrators, in certain cases, and perpetuating the evidence thereof." G. S. 271. Took effect Feb. 26, 1873.

SECS. 42-48. "An act providing for an appeal from the decision of the county court in certain matters.” Approved Feb. 28. Took effect June 1, 1881.

shall proceed to hear, try and determine the same, in like manner as upon appeals, brought upon the judgement of the same court in civil actions. [Id. § 6.]

SEC. 48. [Judgment.]-The final decision and judgment in matters so appealed, shall be certified to the county court, and proceedings shall be had thereon necessary to carry the final decision and judgment into execution. [Id. § 7.]

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.]

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 *NOTE.-"An act authorizing the recovery of damages, by the personal representatives of a person whose death is caused by the wrongful act of a person, company, or corporation." G. S. 272. Took effect May 1, 1873. NOTE.-"An act to provide for the government of the institute for the deaf and dumb, and for other pur"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.

poses.

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 treasurer 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.]

CHAPTER 23.-DECEDENTS.

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. [R. S. 56. G. S. 276.]

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 coverture 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.

NOTE. Chapter XIV, R. S. 56. Chap. 17, G. S. 276.

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.

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 sl all have been enhanced in value after the alienation, such lands shall be estimated in setting out the widows 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.

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 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.

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.

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. —İf 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 provision 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 nave been so intended by the testator.

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.

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 may remain in the dwelling house of her husband one year after his death, without being chargeable with rent therefor, and shall have her reasonable sustenance out of the estate, for one year.

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.

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 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