Steinkirchner v. Linscheid
| Decision Date | 24 January 1948 |
| Docket Number | 36884. |
| Citation | 188 P.2d 960,164 Kan. 179 |
| Parties | STEINKIRCHNER v. LINSCHEID. |
| Court | Kansas Supreme Court |
Rehearing Granted March 13, 1948.
Appeal from District Court, Harvey County; George L. Allison, Judge.
Suit by Elizabeth Steinkirchner against W. P. Linscheid, to obtain a declaratory judgment that the plaintiff's incompetent husband was not possessed of a homestead right in certain property and that an order authorizing the plaintiff to sell the right of her incompetent husband in such property was valid and final. From judgment sustaining a demurrer, the plaintiff appeals.
Judgment affirmed.
Syllabus by the Court.
1. Probate courts must give notice to interested parties even in instances wherein the involved statute reads that a hearing may be held 'with or without notice' if in the proceeding the substantial rights of unrepresented interested parties are involved in such manner that such rights could be adversely affected by the ruling or finding under consideration by the probate courts.
2. Where a husband and wife with their minor children occupy real property as their homestead and the husband is adjudged incompetent and the wife is appointed as guardian of his person and estate, and the wife later moves the probate court for an order authorizing her to sell the incompetent husband's interest in the real property and the court makes the order requested without notice to the husband or the appointment of a guardian ad litem to represent him, the order is void and may be attacked collaterally in any appropriate subsequent proceeding.
3. Whenever the interests of an incompetent may be adverse to those of his legal guardian, a court must require notice to be given to the incompetent and appoint a guardian ad litem for him in order to have jurisdiction.
Emmet A. Blase, of Wichita (W. D. Jochems, J. Wirth Sargent Roetzel Jochems and Robert G. Braden, all of Wichita, on the brief), for appellant.
J. G Somers, of Newton (Arthur N. Turner, of Newton, on the brief), for appellee.
The appeal in this case is from a declaratory judgment of the district court and involves consideration of a constitutional provision and a statute of Kansas pertaining to alienation of homestead interest. The district court held, in substance, that when an incompetent person has an interest in a homestead which was occupied by the family of the incompetent at the time the declaration of incompetency occurred, the probate court cannot authorize the incompetent's guardian to join in the sale of the property by finding sometime later that the property was no longer the homestead of the incompetent and his family. The problem presented may be stated as follows: When a homestead is once occupied by a husband and wife and one of them is adjudged incompetent, may the sane spouse destroy the homestead rights of the insane spouse by abandoning the homestead? The question develops in this case from the following facts:
The plaintiff, Elizabeth Steinkirchner, purchased with her own money a residence in the city of Newton, Kansas in 1926 and title to it was taken in her name. At that time the plaintiff and her husband, Henry Steinkirchner, had two small children and two other children were born thereafter. The family lived in the property without interruption until 1938, when Henry Steinkirchner became mentally deranged and was sent to a veterans' hospital. In the same year he was legally adjudged incompetent by the probate court of Harvey County, Kansas, and his wife, the plaintiff, was appointed guardian for her incompetent husband. The wife and children continued to live in the property until March, 1939, at which time they moved to Wichita because the mother believed there would be better opportunity there for her to obtain employment and because, in her judgment, better facilities were available in Wichita for the higher education of the children. When she and the children moved to Wichita, she rented the Newton house to a tenant. After renting a house in Wichita for two years, the plaintiff purchased a home there and she and the children moved into it. At the time the action was brought, she and the three unmarried children occupied the Wichita residence as their home, and she contends that such property is the family homestead. After renting the Newton property for many years, the plaintiff contracted to sell it to the defendant. In connection with the examination of the title to the Newton property, the defendant's attorney refused to approve the title because, in his opinion, the incompetent husband of the plaintiff still had a homestead interest in the Newton property. The abstract of title disclosed that certain legal proceedings had occurred, the substance of which will be subsequently set forth herein. As a consequence of the objection made to the title by the examining attorney, the parties apparently agreed that the question should be answered by a declaratory judgment and therefore the present action was brought. A résumé of the legal proceedings follows.
The plaintiff's petition alleges that an actual controversy exists between the parties involving a substantial question of legal rights and the proper interpretation of the applicable provision of the constitution and the statutes. After alleging the general facts herein set forth, the petition further alleges that prior to the filing of the declaratory judgment action, the plaintiff as guardian of her incompetent husband had instituted proceedings in the probate court of Harvey County in accordance with G. S. 1949 Supp. 59-1808, for the purpose of obtaining authority from such court to sell the incompetent's interest in the Newton property and that on the 21st day of September, 1946, the probate court of Harvey County entered an order in which such court found that the Newton property was not the homestead of the plaintiff or of her incompetent husband and that such order authorized the plaintiff to sell the inchoate right of her husband in the Newton property. Copies of the petition for authority to sell and of the order authorizing the sale were attached to the petition filed in the declaratory judgment action as a part thereof. Examination of the attached petition and the order discloses that the order of sale was issued on the same date the petition was filed and that the order was made without notice to any parties whomsoever and without a guardian ad litem being appointed for the incompetent.
The petition filed in the declaratory judgment action closes by alleging that notwithstanding the probate court found that the Newton property was not the homestead of the incompetent, the defendant nevertheless contends that the Newton property does constitute the homestead of the incompetent husband and that by reason thereof G. S. 1945 Supp. 59-1808, prohibits its alienation and further that the proceedings taken thereunder in the probate court are void. The prayer to the petition requests that the district court declare the incompetent husband is not possessed of a homestead right in the Newton property and that the order of the probate court authorizing the plaintiff to sell the right of her incompetent husband in such property was valid and final.
A demurrer was filed by the defendant to the petition in the declaratory judgment action and upon consideration thereof and of all of the pleadings and the order referred to in the probate proceedings, the court sustained the demurrer. In the journal entry covering the order sustaining the demurrer, the district court found that the incompetent husband still had a homestead right in the Newton residence which was occupied by the family up to the time the incompetent husband was taken to an institution and that such residence was the involved property. The district court further found that the order for the sale of the incompetent's interest in such property was not binding upon the incompetent husband and did not preclude him from asserting a homestead right in the property and that the order authorizing the sale of it was void. Notice of appeal followed. The plaintiff's specifications of error assert that the trial court erred in sustaining the defendant's demurrer to the plaintiff's petition and in holding that the incompetent husband has a homestead interest in the Newton property and further erred in holding that the proceedings in the probate court which culminated by authorizing the sale of the homestead interest were void.
A majority of the members of this court are of the opinion that the district court's ruling was correct. The record clearly shows that there never has been any controversy over the fact that the plaintiff's husband had a homestead interest in the property at the time he was adjudged incompetent. Because of our constitutional prohibition the plaintiff could not alienate the homestead of her incompetent husband without his consent. Abandonment is a species of alienation. Southern v Linville, 139 Kan. 850, 33 P.2d 123. Section 9 of Article 15 of the constitution of Kansas reads, in part, as follows: 'A homestead * * * occupied as a residence by the family of the owner, * * * shall be exempted from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists; * * *.' Moreover, there never has been in this case any valid legal proceedings in which the guardian of the incompetent could have been properly authorized to sell his homestead interest. Under the applicable statute, the probate court cannot authorize a guardian to sell the right of an insane spouse in a homestead. G.S.1945 Supp. 59-1808, prohibits such a sale. It reads: 'The guardian of the estate of a...
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