13 Neb. 290 | Neb. | 1882
The plaintiff purchased certain real estate at guardian’s sale, and upon a motion being made to confirm the same, he filed exceptions thereto, which were overruled and the sale confirmed. He now brings the case into this court by petition in error. The question to be determined is the authority of the judge in vacation to grant license to sell.
Under the territorial laws, this power was conferred on the probate court of the proper county, but the gross abuse of the power in some of the counties led to the insertion of a provision in the constitution of 1867 depriving the probate courts of the authority to grant license, and conferred the same on the district com’ts. And the authority was continued in the constitution of 1875. The law in relation to decedents has, since the admission of the state into the Union, been amended by substituting the word “district” for “probate” before the word “court,” in cases where authority is conferred to sell real estate. The change being made in this way, let us enquire the object of the provision, in order to ascertain the intent of the legislature in amending the law. It is pretty clear that the object was not to change the procedure or to require the proceedings to be conducted before a jury in open court. The sole object of
An additional reason is found in the fact that licenses to sell real estate have been issued in this way ever since the admission of the state. When the writer came upon the bench ten years ago he found such had been the practice by the judges of the supreme court, who at that time were also judges of the district courts. And the practice has been continued by all the judges of the district courts until the present time. The construction given to the statutes by the early judges by granting licenses, directing
Judgment affirmed.