Part 8 (1/2)

[Sidenote: How set off.]

The share thus allotted to her may be set off by the mutual consent of all parties interested, when such consent can be obtained, or it may be set off by referees appointed by the court. [--3647.]

[Sidenote: Application]

The application for such measurement by referees, may be made any time after twenty days and within ten years after the death of the husband, and must specify the particular tracts of land in which she claims her share, and ask the appointment of referees. [--3648.]

[Sidenote: Widow's share not affected by will.]

The widow's share cannot be affected by any will of her husband, unless she consents thereto within six months after notice to her of the provisions of the will by the other parties interested in the estate, which consent shall be entered on the proper records of the district court. [--3656.] This provision applies equally to the husband's rights under the will of the wife, and it applies to wills made before marriage, as well as to those executed after marriage. Where there is no express provision in the will that a devise to the wife is in lieu of dower, she will take her distributive share of the estate in addition to the property devised to her by will, unless the allowance of dower would be inconsistent with other provisions of the will. The devise of a life estate to a wife will not defeat her right to her distributive share in the real estate owned by the husband at the time of his death.

[Sidenote: Descent. To children.]

Subject to the rights and charges hereinbefore contemplated, the remaining estate of which the decedent died, shall, in the absence of other arrangements by will, descend in equal shares to his children.

[--3657.]

[Sidenote: Share of deceased child.]

If any one of his children be dead, the heirs of such child shall inherit his share in accordance with the rules herein prescribed in the same manner as though such child had outlived his parents. [--3658.] The mother of a child which dies while both of its parents are living cannot, upon the death of its father, claim any share in his estate, as heir of such child.

[Sidenote: Wife and parents.]

If the intestate leave no issue, the one-half of his estate shall go to his parents and the other half to his wife; if he leaves no wife, the portion which would have gone to her, shall go to his parents, [--3659.]

The one-third which the wife takes as her distributive share is all that may be held exempt from debts. The additional share of the estate which she takes in case there are no children, is subject to claims by creditors of the husband.

[Sidenote: Surviving parents.]

If one of his parents be dead, the portion which would have gone to such deceased parent, shall go to the surviving parent, including the portion which would have gone to the intestate's wife had she been living.

[--3660.]

[Sidenote: Heirs of parents.]

If both parents be dead, then the portion which would have fallen to their share, by the above rules shall be disposed of in the same manner as if they had outlived the intestate and died in the possession and owners.h.i.+p of the portion thus falling to their share, and so on through ascending ancestors and their issue. [--3661.]

[Sidenote: Wife and her heirs.]

If heirs are not thus found, the portion uninherited shall go to the wife of the intestate, or to her heirs if dead, according to like rules; and if he has had more than one wife who either died or survived in lawful wedlock, it shall be equally divided between the one who is living and the heirs of those who are dead, or between the heirs of all, if all are dead, such heirs taking by right of representation. [--3662.]

[Sidenote: Advancement.]

Property given by an intestate by way of advancement to an heir, shall be considered part of the estate so far as regards the division and distribution thereof, and shall be taken by such heir, towards his share of the estate at what it would now be worth if in the condition in which it was given to him. But if such advancement exceeds the amount to which he would be ent.i.tled, he cannot be required to refund any portion thereof. [--3663.] A gift to an heir by way of advancement, cannot be considered as any part of the estate for the purpose of increasing the distributive share of the widow, but is to be estimated as part of such heir's share of the property, after the allowance to the wife of her interest.

[Sidenote: Where there are no heirs.]

If there be property remaining uninherited, it shall escheat to the state. [--3665.]

[Sidenote: Illegitimate children. Inherit from mother.]