Appeal of Barnell

• Decision Date: 04 May 1935
• Docket Number: 32220.
• Parties: Appeal of BARNELL.
• Court: Kansas Supreme Court

44 P.2d 214

141 Kan. 842

Appeal of BARNELL.

No. 32220.

Supreme Court of Kansas

May 4, 1935

Syllabus by the Court.

Statute attempting to confer on probate court authority to grant wife power to alienate homestead where husband has been adjudged insane held to violate Constitution prohibiting alienation of homestead without joint consent of husband and wife (Rev. St Supp. 1933, 39--211, 39--221; Const. art. 15, § 9).

Where a husband has been adjudged insane, the provisions of R. S 1933 Supp. 39-- 211 and 39--221, in so far as they attempt to confer on the probate court authority to grant to the wife who is sane, power to alienate the homestead, are held to be in violation of article 15 of section 9 of the Constitution.

Appeal from District Court, Wyandotte County, Division No. 3; William H. McCamish, Judge.

Donald C. Little, Hugh E. Brownfield, Errett P. Scrivner, Harold H Harding, and O. Q. Claflin, III, all of Kansas City, for appellant.

Roland Boynton and W. D Kimble, both of Topeka, amici curiae.

SMITH Justice.

This was a proceeding pursuant to R. S. 1933 Supp. 39--211 and 39--221. The probate court and on appeal the district court held these two sections are in violation of article 15 of section 9 of the Constitution of the state. The applicant under those two sections appeals.

The facts are all admitted. On November 24, 1931, Harry Barnell was adjudged to be insane. He was committed to one of the state hospitals. Letters of guardianship were issued to Margaret Barnell, his wife. On or about January 6, 1933, Margaret bought in her own name a house and lot in Kansas City. She bought this property on the partial-payment plan. After making certain payments, she found herself unable to continue. She and her daughter have been and are now occupying the property as a home. She is now attempting to refinance her purchase of the property through the Home Owners' Loan Corporation. This will require the execution of a mortgage.

R. S. 1933 Supp. 39--211 provides as follows: "Whenever the personal estate of any such person shall be insufficient for the discharge of his debts, the maintenance of himself and family or the education of his children, or whenever said real estate shall be unproductive or an expense upon the estate, the guardian may apply to the probate court by which he was appointed, praying authority to mortgage, lease or sell, the whole, or so much of the real estate of such person as shall be necessary: Provided, however, That if the property sought to be mortgaged, leased or sold shall be the homestead of said incompetent person the court shall not enter any order upon said application unless the husband or wife of said incompetent, as the case may be, shall have first filed with the court a written consent to said application: And provided further, That no guardian's deed executed by virtue of such an order shall be valid unless such husband or wife of said incompetent shall join in the deed as one of the grantors therein."

R. S 1933 Supp. 39--221 provides as follows: "When any such person is a married woman or married man, and not having the property in her or his own right or name, it shall be lawful for her or his guardian, jointly with the husband or wife of such person, to sell, convey or mortgage any real estate, and such sale, conveyance or mortgage shall be valid when ordered and approved by the probate court, without the proceedings being had required by the provisions of this act; and in case of any foreign guardian of any such nonresident person, who has complied with section 39--218 of the Revised Statutes of 1923, such foreign guardian shall be authorized to sell, convey or mortgage any such real estate, jointly with the husband or...