1514. 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, upou 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.

Changed from probate court 1867, p. 112.

1515. 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.

Changed from probate court 1867, p. 112.

1516. 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.

Judge can grant license at chambers. 13, 290 (13 N. W., 399.)

1517. 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.

1518. 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.

1519. 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.

1520. The license granted in pursuance of this subdivision shall be in force no more than one year after granting the same.

1521. When any minor, insane person, or spendthrift, residing without this state, shall be put under guardinship 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.

1522. 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.

1523. 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.

1524. Upon every such sale by a foreign guardian, the proceeds of the sale,

*See sec. 1145, ante.

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.

1525. 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. 1526. 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 disablility 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.

1527. 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. Third-That he took the oath prescribed in this subdivision. FourthThat he gave notice of the time and place of sale, as prescribed by law. FifthThat the premises were sold accordingly, at public auction, and are held by one who purchased in good faith.

1528. 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.

1529. 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.

Secs. 1538 to 1580 formed secs. 105 to 113, ch. 14, R. S. 1866.

1530. When the goods, chattels, rights, and credits in the hands of the guardian of any minor, or of any idiot or insane person, or of any person under guardianship on account of excessive drinking, gaming, idleness, or debauchery, shall be insufficient to pay all the just debts of his ward, with the charges of managing his estate, the guardian may be licensed by the district court of the county in which such guardian was appointed, to sell his real estate for that purpose, in like manner and upon the same terms and conditions as are prescribed in this subdivision, in the case of a sale by an executor or administrator, except as to the particulars in which a different provision is hereinafter made.

1531. If it shall be represented to the court that it is necessary to sell some

part of the real estate of the ward, and by such partial sale the residue of the real estate or some specific piece or part thereof would be greatly injured, the court may license the sale of the whole of the estate, or of such part thereof as the court shall judge necessary, and most for the interest of all concerned.

1532. The guardian shall give bond to the judge of the district court, to account for the surplus of the proceeds of the sale in like manner as is prescribed in this subdivision in the case of a like sale by an executor or administrator.

1533. No license shall be granted to any guardian to sell real estate of his ward, as provided in this subdivision, in any case excepting that of minors, unless the commissioners of the county of which the ward is an inhabitant, or in which he resides, shall certify to the judge of the district court, in writing, their approbation of such proposed sale, and that they deem it necessary.

1534. All those who are next of kin and heirs apparent or presumptive of the ward shall be considered as interested in the estate, and may appear and answer to the petition of the guardian, and when personal notice of the time and place of hearing the petition is required to be given, they shall be notified as persons interested according to the provisions respecting similar sales by executors and administrators, contained in this subdivision.

1535. When any minor, insane person, or spendthrift, residing out of this state, shall be put under guardianship in the state 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 of any county in which there may be any real estate of the ward.

1536. After filing an authenticated copy of his appointment, such foreign guardian may be licensed to sell the real estate for the payment of the debts of the ward, and the charges of managing his estate, 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 wherein a different provision is hereinafter made.

1537. When it shall appear to the judge of the district court that the foreign guardian is bound, with sufficient surety or sureties in the state or country where he was appointed, to account for the proceeds of such sale, and an authenticated copy of such bond shall be filed in the district court, no further bond shall be required here; otherwise he shall give bond in like manner as is prescribed in this subdivision, in case of sales by foreign executors or administrators.*

1538. When such foreign guardian is authorized to sell more than is necessary to pay the debts and charges, he shall, before making the sale, give bond with sufficient surety or sureties to the judge of the district court, with condition to account, before such judge, for all the proceeds of the sale that shall remain after payment of the said debts and charges, and to dispose of the same according to law.

See sec. 1171, ante.

CHAPTER 14.-DRAINAGE.

Secs. 1539 to 1566. "An act to provide for draining marsh or swamp lands in the state of Nebraska, and to repeal au act entitled ‘An act to drain marsh or swamp lands,' passed March 3, 1873. Took effect June 1, 1873. 1-81, p. 236. In force June 1.

1539. The board of commissioners of any county may, at any regular or special session, cause to be located and constructed, straightened, widened, altered, or deepened, any ditch, drain, or water-course, as hereinafter provided, when the same is necessary to drain any lots, lands, public or corporate road, or railroad, and will be conducive to the public health, convenience, or welfare.

See 22, 445 (35 N. W., 211).

1540. The word "ditch," as used in the act, shall be held to include a drain or water-course. The petition for any such improvement shall be held to include any side lateral spur or branch ditch, drain, or water-course necessary to secure the object of the improvement, whether the same is mentioned therein or not; but no improvement shall be located unless a sufficient outlet is provided.

1541. When the proposed improvement will drain the whole, or any part of any public or corporate road, or railroad, or will so benefit any such road that the traveled track or road bed thereof will be improved by its construction, there shall be apportioned to the county, if the road is a state or county road, or to the corporation, if a corporate road or railroad, a proper share of the costs and expenses thereof, as hereinafter provided.

1542. A petition for any such improvement shall be made to the board of commissioners of the county, signed by one or more owners of lots or lands which will be benefited thereby, which said petition shall be filed with the county clerk, and shall set forth the necessity of the proposed improvement, and describe the route and termini thereof with reasonable certainty, and shall be accompanied by a good and sufficient bond signed by two or more sureties, to be approved by the county clerk, conditioned for the payment of all costs that may occur in case said board of county commissioners find against such improvement.

1543. The county clerk shall deliver a copy of said petition to the board of county commissioners, at their next meeting, who shall thereupon take to their assistance a competent surveyor or engineer, if in their opinion his services are necessary, and at once proceed to view the line of the proposed improvement, and determine by actual view of the premises along and in the vicinity thereof, whether the improvement is necessary, or will be conducive to the public health, convenience, or welfare, and whether the line described is the best route, and they shall report their finding in writing, and order the clerk to enter the same on their journal.

1544. If the commissioners, upon actual view, find that the route proposed is not such as to best effect the object sought, they shall change the same and establish the route and determine the dimensions of the proposed improvements; Provided, Any change so made shall not in any case exceed one hundred and sixty rods from the route described in the petition.

1545. If the board of commissioners find for the improvement they shall cause to be entered on their journal an order directing the county surveyor, or an engineer, to go upon the line described in said petition, or as changed by them in accordance with section six, and survey and level the same and set a stake at every hundred feet, numbering down stream; note the intersection of section lines, road crossings, boundary lines, precinct, and county lines and make a report, profile,

and plat of the same, and estimate the number of cubic yards for each working section as hereinafter provided.

1546. The commissioners shall also by their order direct the surveyor or engineer to make and return a schedule of all lots, lands, public or corporate roads, or railroads that will be benefited by the proposed improvement, whether the same are abutting upon the line of the proposed improvement or not, and an apportionment of a number of lineal feet and cubic yards to each lot, tract of land, road, or railroad, according to the benefits which will result to each from the improvement, and an estimate of the cost of location and construction to each, and a specification of the manner in which the improvement shall be made and completed.

1547. The plat provided for in section seven shall be drawn upon a scale sufficiently large to represent all the meanderings of the proposed improvement, and shall show the boundary lines of each lot, or tract of land, and of each road or railroad to be benefited thereby, the name of the owner of each lot or tract of land as it then appears on the tax duplicate, the authority or company having in charge or controlling each public or corporate road or railroad, the distance in feet through each tract or parcel of land, and such other matters as the surveyor or engineer deems material. The profile shall show the surface, the grade line, and the gradient fixed, and the surveyor or engineer shall file his report with the county clerk within thirty days after making the survey and level.

1548. Upon the filing of the report of a surveyor or engineer, the county clerk shall, without delay, fix a day for the hearing of the same, which shall not be more than forty days from the time of the filing of said report, and shall prepare a notice in writing, directed to the resident lot or land owners, and to the authorities or municipal or private corporations affected by the improvement, setting forth the pendeney, substance, and prayer of said petition, together with a tabular statement of the apportionment as made by the surveyor or engineer in his report, and shall deliver the same to the sheriff, who shall serve a copy of the same upon each resident lot or land owner, and each member of such public board or authority, and upon an officer or agent of such private corporation at least ten days before the time fixed for said hearing; Provided, Said copies need contain only so much of the original notice as affects the interests of the person so served; and the county clerk shall in like manner notify each non-resident lot or land owner, or by publication in a newspaper printed and of general circulation in the county, for at least three consecutive weeks before the day set for the hearing, which said notice shall be verified in the manner now provided by law for the verification of notices by publication.

1549. The county commissioners shall meet at the office of the county clerk on the day fixed for the hearing, and shall first determine whether the requisite notice has been given. If they find that due notice has not been given, they shall continue the hearing to a day to be fixed by them, and order the notices to be served as hereinbefore provided, and when they find that due notice has been given, they shall examine the report of the surveyor or engineer, and the apportionment made by him, and if it is in all respects fair and just, according to benefits, they shall approve and confirm the same; but if they find said apportionment to be unfair or unjust, they shall so order and so amend it as to make it fair and just according to benefits.

1550. At any time before the day set for hearing, after persons are notified as provided in section eleven, any person or corporation whose lands are taken or affected in any way by the improvement may make application to the commissioners in writing for compensation and damages, and a failure to make such application shall be held as a waiver of all right thereto.