The opinion of the court was delivered by
Hoch, J.:
In an action brought in district court the husband of an insane wife sought authority for execution of an oil and gas lease on land owned by her and held as their homestead. Judgment was entered for the plaintiff, and under order of the court, a trustee, appointed for the purpose, joined the husband, on behalf of the incompetent wife, in the execution of the lease. A motion to vacate the judgment was overruled and this appeal followed.
On February 4,1942, an opinion per curiam by this court was filed reversing the judgment on the ground that the district court had no jurisdiction and stating that a formal opinion would follow later. (Starke v. Starke, ante, p. 1).
The motion to vacate alleged that the judgment was void for two reasons:
1. The court was without jurisdiction of the subject matter.
2. The judgment was in violation of article 15, section 9 of the Kansas constitution, the pertinent provisions of which are:
“A homestead . . . shall not be alienated without, the joint consent of husband and wife, when that relationship exists. . . .”
Insofar as it is necessary to notice, the petition filed at the inception of the action alleged that the defendant, Myrtle E. Starke, acquired title to a tract of about 145 acres in Barton county in 1923, and immediately subsequent to its acquisition she and her husband, the plaintiff herein, established their residence thereon, and that at all times since it has been their homestead; that Myrtle E. Starke and the plaintiff were married on November 8,1908, and have at all times since been husband and wife; that they are the parents of three children, one of whom is a minor, and that their daughter has two children, both of whom are minors, and that no guardian has been appointed for either of said minors; that in February, 1929, Myrtle E. Starke was found to be insane and was committed to a state hospital of which she has ever since been an inmate; and that on January'3, 1941, the defendant, Frank A. Moses, was appointed guardian of the estate of Myrtle E. Starke by the probate court of Barton county, Kansas.
[333] The petition further alleged that the above-described real estate has some indication of being valuable for oil and gas purposes; that wells are being drilled in the vicinity and as a result of any development it is possible that oil from the lands of Myrtle E. Starke. and those persons who may ultimately become the owners of the land by inheritance may be drained away; that the estate of Myrtle E. Starke is not financially able to explore the land for oil and gas and it is to the best interests of her estate that the lands be leased for that purpose; that such lease will not be in contravention of the terms of any will or deed and will produce a revenue that could not otherwise be obtained and would protect the land from drainage and waste; that under the.constitution of Kansas a homestead may not be alienated without the joint consent of husband and wife when that relation exists, and that the supreme court has construed the above provision as preventing probate courts from authorizing the guardian of an insane person to join with the spouse of such insane person in the execution of conveyances or encumbrances against the homestead of such an insane person, and that by reason of this limitation upon the power and authority of probate courts it is impossible for the plaintiff or the guardian of Myrtle E. Starke, or both, or anyone else, to lease the land for oil and gas purposes, and that in view of the foregoing, although Myrtle E. Starke is entitled to the oil and gas underlying her land, she has no way or means of obtaining the benefit thereof and has no adequate remedy at law in order to enforce her rights thereto.
The petition further alleged that plaintiff, as husband of Myrtle E. Starke, is legally liable for her support and is interested in seeing that her property is managed in such manner as to produce an income which may be used for her benefit; that he has a homestead interest in the real estate, and for these reasons is justified in bringing this action, and that he brings the action against the defendants not only in their individual capacities but as representatives of all that class of persons born or unborn who may become owners of the real estate or any portion thereof by reason of becoming heirs at law of Myrtle E. Starke in case of her death; that Myrtle E. Starke has not executed a valid will and probably never will be able to make a will; that the action is brought for the express purpose of procuring the appointment of some person as trustee, for and on behalf of Myrtle E. Starke and all others who in the future may be[334] come interested in said real estate by reason of becoming the heirs at law or the devisees of Myrtle E. Starke in case of her death, to execute an oil and gas lease for the purpose of developing and producing minerals from the real estate in order that the interest of Myrtle E. Starke and her successors in interest may be saved and preserved.
The petition further alleged that neither the said Myrtle E. Starke nor any of the other parties to the action have an adequate remedy at law by which to assert their rights or to obtain the relief sought.
The prayer of the petition was for the appointment of a trustee with power to make an oil and gas lease.
The persons named as defendants were the guardian of Myrtle E. Starke and the children and grandchildren, individually and as representatives of that class of persons born or unborn who may become heirs or devisees of said Myrtle E. Starke in case of her death, as well also an oil company to which reference will later be made. A guardian ad litem was appointed for the defendant, Myrtle E. Starke, and a guardian ad litem for the named minor defendants, each of whom filed answers.
Thereafter, a trial was had and the court found the facts in substantial conformity to the allegations of the petition, and on March 4, 1941, appointed the plaintiff as a trustee with power to execute an oil and gas lease in accordance with the court’s order, the details of which need not be noticed.
On March 7, 1941, the trustee filed a report of his proceedings and submitted an oil and gas lease to the Continental Oil Company for approval, which report and lease the court approved.
The motion to vacate was filed on March 9,1941, by the guardian and guardian ad litem, who here appeal from an order overruling the motion.
Before considering the question of jurisdiction raised by appellants, we note a contention made by appellee that the motion to vacate the orders for the lease came too late. This contention assumes that the orders were either valid or merely voidable. The assumption is untenable. If the court had no jurisdiction of the subject matter, the orders were void rather than voidable and could be vacated at any time. (G. S. 1935, 60-3009; 31 Am. Jur. 71, § 408; 33 C.. J.. 1075, § 36; In re Windell, 152 Kan. 776, 778, 107 P. 2d 708; Taylor v. Focks Drilling & Mfg. Corp., 144 Kan. 626, 62 P. 2d 903; [335] Baker v. Kansas City, Mo., 118 Kan. 27, 28, 233 Pac. 1012; Kelso v. Norton, 74 Kan. 442, 87 Pac. 184.)
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The opinion of the court was delivered by
Hoch, J.:
In an action brought in district court the husband of an insane wife sought authority for execution of an oil and gas lease on land owned by her and held as their homestead. Judgment was entered for the plaintiff, and under order of the court, a trustee, appointed for the purpose, joined the husband, on behalf of the incompetent wife, in the execution of the lease. A motion to vacate the judgment was overruled and this appeal followed.
On February 4,1942, an opinion per curiam by this court was filed reversing the judgment on the ground that the district court had no jurisdiction and stating that a formal opinion would follow later. (Starke v. Starke, ante, p. 1).
The motion to vacate alleged that the judgment was void for two reasons:
1. The court was without jurisdiction of the subject matter.
2. The judgment was in violation of article 15, section 9 of the Kansas constitution, the pertinent provisions of which are:
“A homestead . . . shall not be alienated without, the joint consent of husband and wife, when that relationship exists. . . .”
Insofar as it is necessary to notice, the petition filed at the inception of the action alleged that the defendant, Myrtle E. Starke, acquired title to a tract of about 145 acres in Barton county in 1923, and immediately subsequent to its acquisition she and her husband, the plaintiff herein, established their residence thereon, and that at all times since it has been their homestead; that Myrtle E. Starke and the plaintiff were married on November 8,1908, and have at all times since been husband and wife; that they are the parents of three children, one of whom is a minor, and that their daughter has two children, both of whom are minors, and that no guardian has been appointed for either of said minors; that in February, 1929, Myrtle E. Starke was found to be insane and was committed to a state hospital of which she has ever since been an inmate; and that on January'3, 1941, the defendant, Frank A. Moses, was appointed guardian of the estate of Myrtle E. Starke by the probate court of Barton county, Kansas.
[333] The petition further alleged that the above-described real estate has some indication of being valuable for oil and gas purposes; that wells are being drilled in the vicinity and as a result of any development it is possible that oil from the lands of Myrtle E. Starke. and those persons who may ultimately become the owners of the land by inheritance may be drained away; that the estate of Myrtle E. Starke is not financially able to explore the land for oil and gas and it is to the best interests of her estate that the lands be leased for that purpose; that such lease will not be in contravention of the terms of any will or deed and will produce a revenue that could not otherwise be obtained and would protect the land from drainage and waste; that under the.constitution of Kansas a homestead may not be alienated without the joint consent of husband and wife when that relation exists, and that the supreme court has construed the above provision as preventing probate courts from authorizing the guardian of an insane person to join with the spouse of such insane person in the execution of conveyances or encumbrances against the homestead of such an insane person, and that by reason of this limitation upon the power and authority of probate courts it is impossible for the plaintiff or the guardian of Myrtle E. Starke, or both, or anyone else, to lease the land for oil and gas purposes, and that in view of the foregoing, although Myrtle E. Starke is entitled to the oil and gas underlying her land, she has no way or means of obtaining the benefit thereof and has no adequate remedy at law in order to enforce her rights thereto.
The petition further alleged that plaintiff, as husband of Myrtle E. Starke, is legally liable for her support and is interested in seeing that her property is managed in such manner as to produce an income which may be used for her benefit; that he has a homestead interest in the real estate, and for these reasons is justified in bringing this action, and that he brings the action against the defendants not only in their individual capacities but as representatives of all that class of persons born or unborn who may become owners of the real estate or any portion thereof by reason of becoming heirs at law of Myrtle E. Starke in case of her death; that Myrtle E. Starke has not executed a valid will and probably never will be able to make a will; that the action is brought for the express purpose of procuring the appointment of some person as trustee, for and on behalf of Myrtle E. Starke and all others who in the future may be[334] come interested in said real estate by reason of becoming the heirs at law or the devisees of Myrtle E. Starke in case of her death, to execute an oil and gas lease for the purpose of developing and producing minerals from the real estate in order that the interest of Myrtle E. Starke and her successors in interest may be saved and preserved.
The petition further alleged that neither the said Myrtle E. Starke nor any of the other parties to the action have an adequate remedy at law by which to assert their rights or to obtain the relief sought.
The prayer of the petition was for the appointment of a trustee with power to make an oil and gas lease.
The persons named as defendants were the guardian of Myrtle E. Starke and the children and grandchildren, individually and as representatives of that class of persons born or unborn who may become heirs or devisees of said Myrtle E. Starke in case of her death, as well also an oil company to which reference will later be made. A guardian ad litem was appointed for the defendant, Myrtle E. Starke, and a guardian ad litem for the named minor defendants, each of whom filed answers.
Thereafter, a trial was had and the court found the facts in substantial conformity to the allegations of the petition, and on March 4, 1941, appointed the plaintiff as a trustee with power to execute an oil and gas lease in accordance with the court’s order, the details of which need not be noticed.
On March 7, 1941, the trustee filed a report of his proceedings and submitted an oil and gas lease to the Continental Oil Company for approval, which report and lease the court approved.
The motion to vacate was filed on March 9,1941, by the guardian and guardian ad litem, who here appeal from an order overruling the motion.
Before considering the question of jurisdiction raised by appellants, we note a contention made by appellee that the motion to vacate the orders for the lease came too late. This contention assumes that the orders were either valid or merely voidable. The assumption is untenable. If the court had no jurisdiction of the subject matter, the orders were void rather than voidable and could be vacated at any time. (G. S. 1935, 60-3009; 31 Am. Jur. 71, § 408; 33 C.. J.. 1075, § 36; In re Windell, 152 Kan. 776, 778, 107 P. 2d 708; Taylor v. Focks Drilling & Mfg. Corp., 144 Kan. 626, 62 P. 2d 903; [335] Baker v. Kansas City, Mo., 118 Kan. 27, 28, 233 Pac. 1012; Kelso v. Norton, 74 Kan. 442, 87 Pac. 184.)
We consider now the question of jurisdiction. A guardian of Myrtle E. Starke’s estate had previously been appointed by the probate court. It was the guardian’s duty to look after her interests. Certainly the situation resulting from oil development in the vicinity of her land called for his attention. But instead of proceeding in the probate court, whether by the husband or by the guardian, to secure approval of the lease, relief was sought in the district court through a trustee appointed for the purpose.
The power of probate courts to deal with the property of insane persons roots in the constitution of the state. Article 3, section 8 of the constitution provides that “There shall be a probate court in each county, which shall be a court of record, and have such probate jurisdiction and care of estates of deceased persons, minors, and persons of unsound minds, as may be prescribed by law.” While the jurisdiction of the probate courts is limited (except possibly as to certain inherent powers [see In re Hanson, 80 Kan. 783, 105 Pac. 694; 21 C. J. S. 538, § 301]) to such powers as are conferred upon it by statute, it has very broad powers over the estates of insane persons (Foran v. Healy, 73 Kan. 633, 640, 642, 85 Pac. 751, 86 Pac. 470; Hill v. Honeywell, 65 Kan. 349, 351, 69 Pac. 334). These broad powers have been further broadened by the provisions of the present probate code which became effective July 1, 1939 (G. S. 1939 Supp. 59-la01 et seq.). In paragraph (6) of 59-301 of the new code it is provided that probate courts shall have power “to appoint and remove guardians for minors and incompetent persons, to make all necessary orders relating to their estates,” etc. (Italics supplied.) The new code specifically provided in paragraph (12), section 59-301, that probate courts “shall have and exercise such equitable powers> as may be necessary and proper fully to hear and determine any matter properly before such courts.” (Italics supplied.) Furthermore, the new probate code contains a number of specific provisions (G. S. 1941 Supp. 59-1806; 59-1807; 59-1808; 59-1809) relative to the power of guardians, subject to approval by the court, to sell, lease or mortgage the property of their wards. (The broad powers conferred in the new probate code over estates of decedents was considered in the recent case of Foss v. Miles, ante, p. 262, 124 P. 2d 438, and in Dixon v. Fluker, post, p. 399, 125 P. 2d 364, this day decided.)
[336] While the delegation, by the constitution, to probate courts of probate jurisdiction and care over the estates of insane persons does not prevent the legislature from also conferring upon district courts certain original jurisdiction to deal with the same subject, matter (21 C. J. S. 731, § 488, note 4; Hill v. Honeywell, 65 Kan. 349, 351, 69 Pac. 334), the legislature has not clothed district courts with the power it assumed to exercise in the instant case. Certainly if any court had jurisdiction to take the action here sought, it was the probate court. The conclusion that the district court was without jurisdiction is further fortified by the well-established rule that even where there is concurrent jurisdiction, the court which first acquires jurisdiction ordinarily retains it to the exclusion of another court which seeks to assume it. (21 C. J. S. 745, § 492; 14 Am. Jur. 435, § 243; Proctor v. Dicklow, 57 Kan. 119, 126, 45 Pac. 86; Watts v. Watts, 151 Kan. 125, syl. ¶ 2, 98 P. 2d 125.)
The conclusion reached on the question of jurisdiction requires reversal of the judgment. It is therefore unnecessary to pass upon the constitutional question and we think inadvisable to do so in this ease.
The judgment is reversed with directions to dismiss the action.