Proofs of Serving Papers.

3035. SEC. 249. All proofs of publication or other mode or modes of giving notice or serving papers may be made by the affidavit of any person competent to be a witness, which affidavit shall be filed, and shall constitute prima facie evidence of such publication or service, as the case may be.

Citation, When Served.

3036. SEC. 250. When no other time is specially prescribed, citation shall be served at least two days before the return day.

Taking Testimony in Other Places.

3037. SEC. 251. For the purpose of taking the testimony of a witness or witnesses in other counties of this state, or in other states or territories, or foreign countries, a commission may be issued as in other cases, and, when issued ex parte no cross interrogatories shall be necessary.

Issues of Fact.

3038. SEC. 252. All issues of fact in matters of an estate shall be disposed of in the same manner as is by law provided upon the trial of issues of fact in a common law action. All questions of costs may be determined by the court, and execution may issue therefor in accordance with the order of the court.

Attorney for Minors.

3039. SEC. 253. When, upon any proceeding in an estate, an attorney has been appointed for minors or others interested in the estate, such attorney, until another may be appointed, shall represent the party or parties for whom he has been appointed in all subsequent proceedings.

Setting Aside Homestead.

3040. SEC. 254. When a decree is rendered setting apart a homestead, a certified copy of such decree shall be recorded in the County Recorder's office where the property is.

Appeal.

3041. SEC. 255. Any person interested in, affected by, and aggrieved at the decision and decree of the district court appointing an executor or administrator, revoking letters, allowing a final account, or disallowing it, decreeing a distribution or partition, order or decree, confirming or setting aside a report of commissioners, admitting or refusing a will for probate, and any other decision. wherein the amount in controversy equals or exceeds, exclusive of costs, one thousand dollars, may appeal to the supreme court of the state, to be governed in all respects as an appeal from a final decision and judgment in action at law.

Power of Appellate Court.

3042. SEC. 256. Upon an appeal the appellate court may in its discretion reverse, affirm, or modify the judgment, order or decree appealed from, and as to any or all of the parties, and order a remittitur as in other cases, and may order costs to be paid by any party to the proceedings, or out of the estate as justice may require. Execution for costs may issue out of the district court.

Undertaking on Appeal Not Required.

3043. SEC. 257. An appeal by an executor or administrator as herein provided, who has given an official bond, shall be complete and effectual without an undertaking on appeal.

Executor Removed-Successor Appointed.

3044. SEC. 258. When an order or decree appointing an executor or administrator shall be reversed on appeal, all lawful acts in administration upon the estate performed by such executor or administrator, if he shall have qualified, shall be as valid as if such order or decree had been affirmed. When an executor or

administrator resigns or is removed, a successor may be appointed if a necessity therefor exists, without again proving the death and residence of the deceased.

Estate of Person Dying Intestate, How Distributed-When to Escheat to State.

3045. SEC. 259. When any person having title to any estate, not otherwise limited by marriage contracts, shall die intestate as to such estate, it shall descend and be distributed subject to the payment of his or her debts in the following

manner:

First-If there be a surviving husband or wife, and only one child, or the lawful issue of one child, in equal shares to the surviving husband or wife and child, or issue of such child. If there be a surviving husband or wife and more than one child living, or one child living and the lawful issue of one or more deceased children, one-third to the surviving husband or wife and the remainder in equal shares to his or her children, and to the lawful issue of any deceased child by right of representation. If there be no child of the intestate living at his or her death, the remainder shall go to all of his or her lineal descendants, and if all of the said descendants are in the same degree of kindred to the intestate, they shall share equally, otherwise they shall take according to the right of representation. Second-If he or she shall leave no issue, the estate shall go in equal shares to the surviving husband or wife and to the intestate's father, and if he or she shall leave no father, it shall go in equal shares to the surviving husband or wife and the intestate's mother. If he or she shall leave no issue or husband or wife, the estate shall go to his or her father, if living, if not, to his or her mother, if living.

Third-If there be no issue, nor husband, nor wife, nor father, nor mother, then in equal shares to the brothers and sisters of the intestate, and to the children of any deceased brother or sister by right of representation.

Fourth-If the intestate shall have no issue, nor husband nor wife, nor father nor mother, and no brother or sister living at his or her death, the estate shall go to the 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 ancestors shall be preferred to those who claim through ancestors more remote; provided, however, if any person shall die leaving several children, or leaving one child and issue of one or more children, and any such surviving child shall die under age and not having been married, all the estate that came to such 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 may have died, by right of representation. Fifth-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 being also dead, and any of them shall have left issue, the estate that came to such child by inheritance from his or her said parent shall descend to all the issue of the 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.

Sixth-If the intestate shall leave no husband nor wife nor kindred, the estate shall escheat to the state for the support of the common schools. As amended, Stats. 1899, 113.

DISTRIBUTION OF ESTATES. Estate of Foley, 24 Nev.; Clark v. Clark, 17 Nev. 124.

Illegitimate Child.

3046. SEC. 260. Every illegitimate child shall be considered as an heir of the person who shall acknowledge himself to be the father of such child by signing in writing a declaration to that effect in the presence of one credible witness, who shall sign the declaration also as a witness, and shall in all cases be considered as heir of the mother, and shall inherit in whole or in part, as the case may be, in the same manner as if born in lawful wedlock. The issue of all marriages deemed null in law or dissolved by divorce shall be legitimate.

Heirs of Illegitimate Child.

3047. SEC. 261. If any illegitimate child shall die intestate without lawful issue and shall not have been acknowledged as above provided, his estate shall descend to his mother, or, in case of her decease, to her heirs at law.

Degrees of Kindred.

3048. SEC. 262. The degrees of kindred shall be computed according to the rules 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 comes to the intestate by descent, devise or gift from some one of his or her ancestors, in which case all those who are not of the blood of such ancestor shall be excluded from the inheritance.

Advancement a Part of Estate.

3049. SEC. 263. Any estate, real or personal, that may have been given by the deceased in his or her lifetime as an advancement to any child or other lineal descendant shall be considered as part of the estate of the intestate, so far as regards the distribution and division thereof among his or her issue, and shall be taken by such child or other lineal descendant towards his or her share of the estate of the deceased.

When Advancement Exceeds Share.

3050. SEC. 264. If the amount of such advancement shall exceed the share of the heir so advanced, such heir shall be excluded from any further portion in the distribution and division of the estate, but he or she shall not be required to refund any part of such advancement; and if the amount so received shall be less than his or her share, he or she shall be entitled to as much more as will give him or her his or her full share of the estate of the deceased.

Gifts and Grants.

3051. SEC. 265. No gift or grant shall be deemed to have been made as an advancement unless so expressed in the gift or grant, or charged in writing by the deceased as an advancement, or acknowledged in writing by the child or other descendant to be such.

Value of Advancement.

3052. SEC. 266. If the value of the advancement shall be expressed in the conveyance, or in the charge thereof made by the deceased, or in the acknowledgment of the party receiving it, it shall be considered of that value in the distribution and division of the estate; otherwise it shall be estimated according to its value when given as nearly as the same can be ascertained.

Advancement in Case of Death of Recipient.

3053. SEC. 267. If any child, or other lineal descendant so advanced, shall die before the person making the advancement leaving issue, the advancement shall be taken into consideration in the distribution and division of the estate, and the amount thereof shall be allowed accordingly by the representatives of the heir so advanced in the like manner as if the advancement had been made directly to them.

Husband and Wife.

3054. SEC. 268. The provisions of this Act, as to the inheritance of the husband and wife from each other, apply only to the separate property of the

intestate.

Construction of Act-Compensation of Attorneys.

may

3055. SEC. 269. This Act shall be liberally construed, to the end that justice be done all parties, and as speedy settlement of estates at the least expense secured; and all proceedings in matters of estate shall be proceedings of record as other actions and proceedings; and all attorneys for estates or executors or administrators or appointed in the proceedings shall be attorneys of record with

40

administrator resigns or is removed, a successor may be appointed if a necessity therefor exists, without again proving the death and residence of the deceased.

Estate of Person Dying Intestate, How Distributed-When to Escheat to State.

3045. SEC. 259. When any person having title to any estate, not otherwise limited by marriage contracts, shall die intestate as to such estate, it shall descend and be distributed subject to the payment of his or her debts in the following

manner:

First-If there be a surviving husband or wife, and only one child, or the lawful issue of one child, in equal shares to the surviving husband or wife and child, or issue of such child. If there be a surviving husband or wife and more than one child living, or one child living and the lawful issue of one or more deceased children, one-third to the surviving husband or wife and the remainder in equal shares to his or her children, and to the lawful issue of any deceased child by right of representation. If there be no child of the intestate living at his or her death, the remainder shall go to all of his or her lineal descendants, and if all of the said descendants are in the same degree of kindred to the intestate, they shall share equally, otherwise they shall take according to the right of representation. Second-If he or she shall leave no issue, the estate shall go in equal shares to the surviving husband or wife and to the intestate's father, and if he or she shall leave no father, it shall go in equal shares to the surviving husband or wife and the intestate's mother. If he or she shall leave no issue or husband or wife, the estate shall go to his or her father, if living, if not, to his or her mother, if living.

Third-If there be no issue, nor husband, nor wife, nor father, nor mother, then in equal shares to the brothers and sisters of the intestate, and to the children of any deceased brother or sister by right of representation.

Fourth-If the intestate shall have no issue, nor husband nor wife, nor father nor mother, and no brother or sister living at his or her death, the estate shall go to the 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 ancestors shall be preferred to those who claim through ancestors more remote; provided, however, if any person shall die leaving several children, or leaving one child and issue of one or more children, and any such surviving child shall die under age and not having been married, all the estate that came to such 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 may have died, by right of representation. Fifth-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 being also dead, and any of them shall have left issue, the estate that came to such child by inheritance from his or her said parent shall descend to all the issue of the 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.

Sixth-If the intestate shall leave no husband nor wife nor kindred, the estate shall escheat to the state for the support of the common schools. As amended, Stats. 1899, 113.

DISTRIBUTION OF ESTATES. Estate of Foley, 24 Nev.; Clark v. Clark, 17 Nev. 124.

Illegitimate Child.

3046. SEC. 260. Every illegitimate child shall be considered as an heir of the person who shall acknowledge himself to be the father of such child by signing in writing a declaration to that effect in the presence of one credible witness, who shall sign the declaration also as a witness, and shall in all cases be considered as heir of the mother, and shall inherit in whole or in part, as the case may be, in the same manner as if born in lawful wedlock. The issue of all marriages deemed null in law or dissolved by divorce shall be legitimate.

Heirs of Illegitimate Child.

3047. SEC. 261. If any illegitimate child shall die intestate without lawful issue and shall not have been acknowledged as above provided, his estate shall descend to his mother, or, in case of her decease, to her heirs at law.

Degrees of Kindred.

3048. SEC. 262. The degrees of kindred shall be computed according to the rules 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 comes to the intestate by descent, devise or gift from some one of his or her ancestors, in which case all those who are not of the blood of such ancestor shall be excluded from the inheritance.

Advancement a Part of Estate.

3049. SEC. 263. Any estate, real or personal, that may have been given by the deceased in his or her lifetime as an advancement to any child or other lineal descendant shall be considered as part of the estate of the intestate, so far as regards the distribution and division thereof among his or her issue, and shall be taken by such child or other lineal descendant towards his or her share of the estate of the deceased.

When Advancement Exceeds Share.

3050. SEC. 264. If the amount of such advancement shall exceed the share of the heir so advanced, such heir shall be excluded from any further portion in the distribution and division of the estate, but he or she shall not be required to refund any part of such advancement; and if the amount so received shall be less than his or her share, he or she shall be entitled to as much more as will give him or her his or her full share of the estate of the deceased.

Gifts and Grants.

3051. SEC. 265. No gift or grant shall be deemed to have been made as an advancement unless so expressed in the gift or grant, or charged in writing by the deceased as an advancement, or acknowledged in writing by the child or other descendant to be such.

Value of Advancement.

3052. SEC. 266. If the value of the advancement shall be expressed in the conveyance, or in the charge thereof made by the deceased, or in the acknowledgment of the party receiving it, it shall be considered of that value in the distribution and division of the estate; otherwise it shall be estimated according to its value when given as nearly as the same can be ascertained.

Advancement in Case of Death of Recipient.

3053. SEC. 267. If any child, or other lineal descendant so advanced, shall die before the person making the advancement leaving issue, the advancement shall be taken into consideration in the distribution and division of the estate, and the amount thereof shall be allowed accordingly by the representatives of the heir so advanced in the like manner as if the advancement had been made directly to them.

Husband and Wife.

3054. SEC. 268. The provisions of this Act, as to the inheritance of the husband and wife from each other, apply only to the separate property of the intestate.

Construction of Act-Compensation of Attorneys.

3055. SEC. 269. This Act shall be liberally construed, to the end that justice may be done all parties, and as speedy settlement of estates at the least expense secured; and all proceedings in matters of estate shall be proceedings of record as other actions and proceedings; and all attorneys for estates or executors or administrators or appointed in the proceedings shall be attorneys of record with