The opinion of the court was delivered by
Smith, J.:The following question is presented in this case : When a person is imprisoned under a sentence for life, does his property, by that fact, descend to his heirs in all respects as if he were naturally dead? Those sections of the statute necessary to be considered read:
“A sentence of confinement and hard labor for a term less than life suspends all civil rights of the person so sentenced during the term thereof, and forfeits all public offices and trusts,, authority and poweí; and a person sentenced to such confinement for life shall thereafter be deemed civilly dead.” (Gen. Stat. 1899, §2254; Gen. Stat. 1897, ch. 100, §376.)
“Whenever any person shall be imprisoned under a sentence of imprisonment for life, his estate, prop*542erty and effects shall be administered and disposed of in all respects as if he were naturally dead.” (Gen. Stat. 1899, §5583; Gen. Stat. 1897, ch. 102, §311.)
But for section 5583 of the statute, supra, we are all agreed that the mere fact of a sentence and imprisonment for life would not cast the descent of the convict’s estate. The declaration that a person in such condition shall be deemed civilly dead is to be interpreted as to its effect by a reference to the common law. In Avery v. Everett, 110 N. Y. 317, 18 N. E. 148, after an exhaustive review of all the authorities, the court said:
“It seems to be a necessary conclusion, from the rules of the common law governing rights of property as affected by forfeiture for crime, that civil death, one of the consequences of conviction for treason or felony, did not of itself, as a general rule, at least, operate to divest the offender of his title to his lands.” (See, also, Frazer v. Fulcher, 17 Ohio, 260; Baltimore v. Chester, 53 Vt. 315.)
In Maine and Missouri statutory provisions similar to section 5583 exist, but they have received no judicial interpretation. The turning-point is the construction to be placed on the words “administered and disposed of.” Administration' has relation to personal property, and it is only where the personalty is insufficient in value to pay the debts of the decedent that the administrator exercises any control over the real estate. It descends to the heirs eo instanti upon the death of the ancestor. We think that by the use of the word “administered,” in this provision relating to the estate of convicts, it was the intention of the lawmakers to restrict the administrator to the control and disposition of personal property for the benefit of creditors, to the end that all debts of the convict might be speedily paid. The words “disposed of” are not *543in our judgment broad and comprehensive enough to reach to and embrace that act of the law which vests the ownership of property in an heir by inheritance. They can be more sensibly applied to affirmative action taken by a person either natural or artificial. It is an inapt expression to say that when an estate is cast by descent on the heir by the death of the owner it has been disposed of.
It will be noticed also that the two sections of the law under consideration are not a part of the statutes relating to descents and distributions. One section is found under the title of crimes and punishments, and the other under criminal procedure. In the present case the property in controversy is real estate, and there are no debts owing by the convict. If such estate has already devolved upon the heirs, an administrator can do nothing which will affect the lands. As applied to this case, the use of the word “administered” can have no force, for the estate in controversy can never come to the hands of an administrator.
In Rachel Beard, Respondent, v. William J. Knox, Executor of William M. Beard, Appellant, 5 Cal. 252, a statute was before the court forlconstruction which related to the rights of husband and wife. It provided : “All property, acquired by either husband or wife, except such as may be acquired by gift, bequest, devise, or descent, shall be common property.” It was further provided that the husband should have the entire control, of the common property, with absolute power to dispose of it, and upon the dissolution of the community by death, of either husband or wife, one-half of the common property should go to the survivor. It was held that the words “with absolute power to dispose of” ought not to be extended to a disposition by devise.
*544If descent be cast, ipso facto, by the sentence and imprisonment of a person for life, then such person may make testamentary disposition of his property before such sentence and imprisonment, which will take effect immediately thereafter. The incongruity of the convict’s position in the -event of a final acquittal or pardon may be noticed. From such sentence he may appeal to this court within two years after the judgment is .rendered. If he be granted a new triaTand finally secure an acquittal, or his discharge from imprisonment be ordered, we may see a person formerly civilly dead living with heirs who have inherited his property. Again, it would be entirely legal for such person, though once pronounced dead in law, to be appointed administrator of his own estate, or to be called on to prove the execution of his own will. In the event of the convicted person making two wills, one before sentence and imprisonment and the other after his pardon or acquittal and immediately prior to his natural death, a confusing question would arise as to which will should be given effect.
In default of heirs, the application of the statute as contended for by counsel for defendants in error would cause the real estate of the convict to escheat to the state, involving a forfeiture of property, which ought not to be declared without express and unambiguous legislative direction.
Such considerations might be immaterial if the law were plain and explicit, for we have no doubt of the power of the legislature, by express language, to cast the descent of a convict’s property, in the event of his civil death, on such persons as would be heirs at law in case of natural death. In cases of doubt, however, the argument ab inconvenienti is of much force. In an *545exhaustive note to Avery v. Everett, supra, found in 6 American State Reports, 366, 383, the author says :
“We deduce, therefore, that in those states where there is a statutory provision that one imprisoned for life shall be deemed civilly dead, the legislature could not have intended that such convict should labor under greater disabilities than those entailed by the common-law decisions; and if the strict rule of the common law is not to be followed, it must be assumed — and especially so in view of our institutions and tenures here, and also in view of the fact that such convict may be pardoned — that one civiliter mortuus under the statutes ought not to be deemed naturally dead so far as retaining his title to property and protecting it is concerned, and that it ought not certainly to devolve upon his successors or heirs simply because of the disability of imprisonment. This construction of those statutes would, it seems to us, be founded in greater justice and more in consonance with the reason of the law, and more in keeping with the spirit of our institutions, than a conclusion to the contra
The convicted person whose property is involved in the case at bar is, in fact, no longer civilly dead. Her sentence was, within a year after it took effect, commuted by the governor to a term of forty years. Her life has been restored. It ought not to be held that she has been divested of her property by operation of law unless the statute, in clear and explicit terms, has so declared.
The question raised by plaintiff in error, that the two sections of the statute under discussion are unconstitutional, has been decided against his contention in Woodruff v. Baldwin, 23 Kan. 491.
The judgment of the court below will be reversed and a new trial granted.
Doster, C. J., and Pollock, J., dissenting.