(concurring in result; dissenting from certain conclusions stated in the opinion): I concur in the finding that the district court was without jurisdiction of the subject matter and in that part of the opinion pertinent thereto. But in view of the whole situation disclosed by the record and as presented by this appeal, I think the court should also have treated the constitutional question raised by the motion to vacate the judgment.
While the general policy of deciding only what is strictly necessary to determine the result of a case is a wise one, there have been many cases where the court felt that it was both just and advisable to treat other vital questions which had been briefed, argued and considered but which for some reason had become nonessential in determining the immediate result in the then pending case. In my opinion this case presents such a situation. We have told the appellee that original jurisdiction of the estates of incompetents lies exclusively in the probate court. Perhaps we have now no obligation, strictly speaking, to do more than that for his guidance. But after all, the question which lies at the bottom of this case is the proper construction of the homestead provision involved. *337The constitutional question was briefed, argued and considered. Indeed, after the case had been submitted, we reset the case, on our own motion, for oral argument on the constitutional question, as well as on the question of jurisdiction. On account of all that and because, in my opinion, the plight of the appellee, husband of a stricken wife, is so contrary to the protective purposes of the homestead law, I think we should here reexamine the question of the proper construction of the homestead provision of the constitution. Moreover, the situation of the appellee has an aspect of wide public interest, particularly so on account of the extensive development of oil and gas in this state in recent years. I am therefore impelled to express my personal views on the question.
Three questions inhere ip the constitutional provision that the homestead “shall not be alienated without the joint consent of husband and wife, when that relation exists.” (Italics supplied.) First, what constitutes “alienation”; second, when may consent be said to be “joint”; and third, what may constitute “consent”? All three questions have been before this court at various times. The first two call for only brief comment here.. The third is the determining one in the instant case.
On the first question it will suffice to say that an oil and gas lease, precisely like the one here involved, has been held by this court to be an “alienation” within the meaning of our constitution. The first case in point was Land Co. v. Gas Co., 43 Kan. 518, 23 Pac. 630. In there holding that an oil and gas lease, given on the homestead without the wife’s consent, was invalid, the court adopted the proposition stated in the earlier cases of Coughlin v. Coughlin, 26 Kan. 116, and Pilcher v. A. T. & S. F. Ry. Co., 38 Kan. 516, 16 Pac. 945, that any conveyance which may result in interference with the possession and enjoyment of the premises is an “alienation” within the meaning of the constitution. Such interference was held mainly to arise, in the case of the oil and gas lease, from the right therein given to erect derricks, buildings, to lay pipe lines, etc., in connection with prospecting and production under the lease. Like provisions are contained in the standard oil and gas lease here involved. (Land Co. v. Gas Co., supra, was followed in Palmer v. Parish, 61 Kan. 311, 59 Pac. 640; Thompson v. Milliken, 93 Kan. 72, 75, 143 Pac. 430; and Petersen v. Skidmore, 108 Kan. 339, 195 Pac. 600. See, also, 45 A. L. R. 424-427.)
*338On the second question there is no controversy here. The instrument of alienation must be jointly executed. That is a primary requisite, and in various decisions the meaning of the word “joint” has been explored. (Ott v. Sprague, 27 Kan. 620; Pilcher v. A. T. & S. F. Ry. Co., supra; and Wallace v. Insurance Co., 54 Kan. 442, 446, 38 Pac. 489.)
And now, what about the word “consent”? There is no dispute over the formal definition. Consent is an act of agreement made with intelligent understanding of the nature and probable effect of the act. The only issue here is whether the probate court— charged both by the constitution and the statutes with the duty of protecting the interests of incompetent persons—may not substitute its mind for that of the ward, the insane wife, and in her behalf join the sane husband in “consent” to the lease. If not, then no homestead can ever be sold, leased, or mortgaged where a marriage relationship exists and either spouse is mentally incompetent, even though irreparable injury thereby results to both husband and wife. With reference to all other property no one questions the power of the court to “consent” in behalf of an incompetent ward—the exercise of such power and duty is the very heart of guardianship. Why then should the idea of such judicial consent be rejected in the case of the homestead? To do so is to say in one breath that the ward must give his personal consent, and in the next that he is incapable of giving it. We have examined the decisions to find what basis there is for such a strange doctrine.
The term' “joint consent” has been involved in a number of our cases. Most of them are not in point on the present issue. Some of them deal with deeds or mortgages given by the husband or wife alone, where title was held in the name of the one seeking to convey. Or, with attempted conveyance by a gúardian without authorization by the probate court. Others involve separate conveyances, held inadequate because there was no joint conveyance by husband and wife. But several decisions are clearly in point. They hold that where one spouse is insane, and the other desires to alienate the homestead, either by deed, lease or mortgage, consent on the part of the insane spouse cannot be authorized by the court.
The parent case is Locke v. Redmond, 6 Kan. App. 76, 49 Pac. 670, decided by the Court of Appeals and confirmed per curiam without written opinion by this court (59 Kan. 773). Strangely *339enough, neither in that case nor in any of those, which followed it does it appear that the question of what constitutes “consent” within the meaning of the constitution was ever presented or considered. In the Redmond case the court had before it for scrutiny a statute (G. S. 1889, 3696-3708) empowering a guardian to sell “the whole or so much of the real estate of an insane person” as might be ordered by the probate court. It was held that the statute was meant to apply only to the estate other than the homestead, and the court said:
“We do not believe that it was the intention of the legislature that these provisions should take the place of the ‘joint consent’ provided by the constitution. . . . When the reason of the wife has been overthrown, when she has become so unfortunate as to be unable to protect herself, when by her efforts to keep the homestead and family together she has been overcome and her mind gives way, it is not an unwise provision of our constitution that she should be protected to the extent of the homestead. That this homestead should be placed beyond the power of a guardian and beyond the power of her husband, except with her consent, is wise and just. . . . We hold that it requires the joint consent of husband and wife to alienate the homestead, and that a want of such consent cannot be supplied by a guardian. If, for the reason of insanity or any other reason, the wife’s consent cannot be procured, there can be no conveyance.’’ (Italics supplied.) (pp. 81, 82.)
From those statements have largely flowed the subsequent decisions. . Two observations, in passing, on those statements: First, the opinion refers only to the power of the husband or of the guardian and makes no reference to the vital question of the power of the court to give consent for her. Second, the opinion states it is a wise provision which places the homestead rights of an insane wife beyond the power of her husband or guardian “except with her consent,” and then follows with the observation that being insane she cannot give her consent!
The Redmond case was followed by Withers v. Love, 72 Kan. 140, 83 Pac. 204, in which a husband, whose wife was insane, was convicted of a felony and upon the day he was sentenced surrendered the guardianship of his wife’s estate and gave to his brother-in-law, appointed her guardian by the probate court, power of attorney to manage his affairs, to sell property, etc. The brother-in-law, as guardian, subsequently secured authority from the probate court to sell his ward’s interest in the homestead, together with the husband’s interest which he sold under the power of attorney. Some years later, after the husband was released from the penitentiary, he *340brought action to set aside the guardian’s deed, and this court held that the deed was void. The Redmond case was cited in support. A number of other cases were also cited, but none of them involves the instant issue. They referred to matters such as fraud or to conveyances executed under duress, about which there can be no question.
There are perhaps only two later cases which may be regarded as directly in point. In Iles v. Benedict, 110 Kan. 200, 203 Pac. 925, a husband and wife had made a contract for the sale of the homestead, upon certain conditions, but before the conditions were met the husband became insane. After securing authority from the probate court, the wife executed a deed for herself and as guardian of her husband’s estate. The grantee refused to accept the guardian’s deed on the ground of doubtful conveyance of title. Specific performance, sought by the wife, was refused. It must be noted, however, that at the time the deed was at issue and at the time of the decision, the then-existing statute (G. S. 1915, § 6118), which provided for disposition of property of insane married persons, expressly excepted the homestead from its scope. That fact alone was sufficient to invalidate the deed, and what was said further in the case might well be regarded as dictum. However, the Redmond case, decided under statutes containing no such reservation, was cited with approval.
Following the decision in the Benedict case in 1922, the 1925 legislature passed an act (Laws of 1925, ch. 181; G. S. 1935, 39-211) which provided that whenever the personal property of an insane person was insufficient to pay debts, the guardian might, after securing authority therefor from the probate court, “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.” In 1927 the legislature further supplemented the 1925 statute by striking from G. S. 1915, § 6118 (R. S. 1923, 39-221), which was in effect when the Benedict case was decided and which had not been repealed by the 1925 *341act, the phrase “except the homestead” and by adding this provision: “When any such [insane] 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.” (Laws 1927, ch. 228; G. S. 1935, 39-221.)
The above statutes of 1925 and 1927 (G. S. 1935, 39-211, 39-221) were before this court in the case of In re Barnett Estate, 141 Kan. 842, 44 P. 2d 214. Margaret Barnell had been appointed guardian of her husband’s estate, who had been adjudged insane in November, 1931. In the preceding January a house in Kansas City had been purchased on an installment plan, in the wife’s own name. She and her daughter were occupying it as their home. Finding herself unable to meet the payments, she found it possible to refinance on more favorable terms from' another source, and brought action in the probate court as guardian to secure approval of the new mortgage. She followed the procedures both of 39-211 and 39-221. The lower court denied her the right to make the mortgage on the ground that the statutes were unconstitutional because in violation of article 15, section 9 of the constitution. This court affirmed the judgment, basing the decision upon Iles v. Benedict, supra, which had been decided when the statutes expressly exempted homesteads of insane persons from its operations.
These decisions have, in effect, read the word “personal” into the constitution before the word “consent” and thereby excluded all possibility of consent by the court in behalf of its incompetent ward. Such a construction not only robs the ward of protection but is contrary to the common practice in many other situations familiar to the law, where the court must and does give consent in behalf of those incapable of personal action. It is also essentially inconsistent with the holding in various other cases involving homestead property. For instance, take the case of division of property of husband and wife under order of the court. I am not referring to cases where divorce is granted—admittedly in such a case a different situation is presented because the marriage relationship has ceased to exist. But this court has approved division of property of husband and wife in which a homestead interest was taken *342away from one spouse and given to the other even tjhough no divorce was granted. (See Osman v. Osman, 86 Kan. 519, 520, 121 Pac. 327.) In Wulf v. Fitzpatrick, 124 Kan. 642, 643-644, 261 Pac. 838, the “home farm” held in the name of the husband and upon which he and the plaintiff lived was not specifically called the homestead, but it was clearly such under the facts stated in the opinion. Without a divorce being granted it was transferred to the wife. Certainly in such a case the consent is not personal on the part of the spouse whose interest in the homestead is taken away. Other illustrations readily suggest themselves.
In determining what the framers of the constitution meant by the word “consent” it is necessary also to consider article 3, section 8 of the constitution. Under that section the probate court is given “such probate jurisdiction and care of ¿states of . . . persons of unsound minds ... as may be prescribed by law.” In harmony therewith, very broad powers have been conferred by statute, as heretofore noted. If the word “consent” can mean nothing but “personal consent” how could any property, whether homestead or not, belonging to a ward, be alienated? Without constructive consent, or in other words, consent imputed as a matter of law, the provisions of constitution and statute for protecting the interests of minors and incompetent persons would be futile. It seems perfectly clear to me, therefore, that the word “consent” must include not only cases where the spouse is capable of giving consent personally, but also cases where the spouse is incompetent and consent must be given for him or her by the court having jurisdiction over the ward’s estate and charged with the duty of protecting 'his interests.
It is' argued that sanction of the instant lease without the personal consent of the insane wife (which she cannot give) would let down the bars and open the way to a raid upon the homestead exemption, so deeply imbedded in our law and public policy. That suggestion implies unwarranted distrust of the courts and ignores realities. If the probate court cannot be trusted to protect the homestead interest of the state’s ward, what shall be said of its plenary power over all other property of incompetents? Suppose, in the instant case, an adjoining quarter section of land is owned by another married woman who does not live upon it but lives in a rented room in town. Suppose the land is all the property she has. Suppose she becomes mentally incompetent. No one questions *343or fears the court’s power in such a case. Upon proper showing, the probate court can and does authorize the guardian of her estate to sell, lease or mortgage the insane married woman’s land. Numberless similar illustrations might be given. The necessity of the exercise of such judicial power has been universally recognized. To say that the probate court may not give such consent, no matter how urgent the need, simply because the property is a homestead, is not only wholly illogical but reads a limitation into the constitution which the framers did not put there.
Let it be perfectly clear that I am not here suggesting that the other spouse or the guardian of the incompetent’s estate has any power, without order and approval of the court, to join in the consent to alienation of the homestead. The power is in the court. Not only in the section of the probate code, here involved (59-1807), and in other sections is there specific requirement of court approval, but the opening sentence of the section defining a guardian’s duties (G. S. 1941 Supp. 59-1804) reads: “A guardian shall be subject to the control and direction of the court at all times and in all things.” And court approval can be secured only after petition has been filed as provided in the code and after “it shall be determined by the court that such sale, lease or mortgage is for the best interests of the ward and his estate.” (Italics supplied.) (59-1807.) And beyond all this lies the right of appellate review in the case of arbitrary action or abuse of discretion.
The construction herein placed upon the word “consent” is the only one consistent with the purpose and spirit of the homestead provision. The obvious purpose was to protect the interests of the homeowner—to throw the protecting arm of the constitution about the institution of the family, and of the- home which shelters it. The beneficent effects of that policy have become a part of our state tradition. And I say that the judicial interpretation heretofore placed upon the word “consent” runs directly counter to that benign policy. For illustration, let us pose one more example, human and real, in addition to the instant case. A husband falls victim to insanity said to be of an incurable type. His confinement in an asylum is probably for life. The only property is a Kansas homestead, owned by the wife in her own name. The children live in a distant state and the mother desires to sell the Kansas place to get money to buy a home where she can be near her children in her declining years. Under the rule of Locke v. Redmond no court can *344give her authority either to sell or lease, no matter what showing is made that it would be to the interest of her husband as well as herself to dó so. Apparently her only recourse under our prior decisions, as long as her husband is alive and she desires no divorce, is to live and die alone on the Kansas place, or abandon it to the weeds and to tax sale!
And now what have we in the instant case? A stricken wife and mother is taken from her homestead and her family. The husband, and perhaps the children, continue to live on the homestead—with what struggle and hardship the record does not disclose. But at last new hope is kindled. Near-by lands are dotted with oil-producing wells. The threat of drainage grows real. And it is no imaginary menace. That oil and gas are migratory in character—the distance of travel depending, among other factors, upon the porosity and permeability of the saturated structure—is an accepted fact, a fact not only of scientific interest, but a fact upon which the whole oil and gas industry is built. And so, to protect the homestead property of the insane wife, there must be offsetting wells on the tract. Whatever oil and gas lie beneath it may be lost, irrevocably and wholly. The family is unable to finance development. But oil companies, with resources and equipment, offer to take a production lease, with fair rentals and the usual royalty to the owner. Whereupon, the husband or the guardian of the estate goes confidently to the court that is charged with care of the estate of his wife and lays the situation before it. The court is impressed. It knows that if the stricken wife could speak for herself she would eagerly join her husband in execution of the lease. It desires to act at once to save her from irreparable loss. It adopts every means for guarding her interests—appraisal of the value of the lease, creation of a trust fund -in all rentals and royalties, ample bond from the trustee, and continuing jurisdiction to protect her who cannot protect herself. But there stands Locke v. Redmond, 6 Kansas Appeals! It says that the wife must give her consent personally, and being insane she cannot do it! And the court can only bow its head and say: “Too bad. We must permit adjacent wells to drain the rich resources of the land—perhaps the main value in the homestead. Let the lawful larceny continue.” And this in the name of the constitution which sought to protect those who cannot protect themselves!
I cannot accept the idea that the framers of the constitution in*345tended any results so preposterous. The legislature of 1868, meeting but a few years after the constitution was adopted and having in its membership several men who had sat in the constitutional convention, enacted a comprehensive statute providing for broad control by the probate court, including sale, lease or mortgage of the real estate of incompetents, without reservation as to the homestead. One of the sections provided:
“Every conveyance, mortgage, lease and assurance, made under the order of the probate court, pursuant to the provisions of this act, shall be as valid and effectual as if the same had been executed by such insane person . ; . when of sound memory and understanding.” (G. S. 1868, ch. 60, § 32.) (Italics inserted.)
But along came the ill-considered decision in Locke v. Redmond. And then followed through the years attempts by the legislature to avoid by statute the gross injustices flowing from that decision and later ones which simply trailed it. (Latest such attempts, Laws 1925, ch. 181; Laws 1927, ch. 228.) As long as the unsound rule of Locke v. Redmond is permitted to stand such statutes will continue to be stricken down.
Decisions of other jurisdictions touching the question are in conflict. It is said that the weight of authority is on the side of Locke v. Redmond. That may be true, though our research discloses few cases that are really in point, owing to different provisions of law involved. And there are strong and well-considered opinions which support the view herein expressed.
The Texas constitution provides (art. 16, § 50) “nor shall the owner, if a married man, sell the homestead without the consent of the wife, given in such manner as may be prescribed by law.” (Italics supplied.) In a series of cases the Texas courts have held, in effect, that in case the wife is insane the wife’s personal consent is not required, but may be imputed to her by the court. While the language of the Texas constitution differs materially from ours, the reasoning of the Texas cases is equally applicable here. In Green et al. v. Windham et al., 115 Tex. 162, 278 S. W. 1101, it was said:
“But neither the constitution nor the statutes contemplated an impossibility; neither was it in contemplation that under impossible conditions the homestead, once acquired, should remain so forever or indefinitely, regardless of the desires or welfare of the parties. Mrs. Jennie Green had become insane and was wholly unable to give consent or to in any manner exercise choice, judgment or discretion. It was not the consent of one wholly incompetent and wholly unable to give consent that was in the contempla*346tion. of the makers of the constitution. . . . The law does not prescribe the impossible.” (p. 165.)
(See, also, Reynolds Mortgage Co. v. Gambill, 115 Tex. 273, 280 S. W. 531; Carter v. Green, 64 S. W. 2d 1069; Brunson et al. v. Yount-Lee Oil Co. et al., 32 S. W. 2d 893, 894.)
The California decisions also hold that the court may give consent to alienation in behalf of insane persons. The California law provides that “the homestead of a- married person cannot be conveyed or encumbered unless the instrument by which it is conveyed or encumbered is executed and acknowledged by both husband and wife.” (Deering, Civil Code of California, 1941, § 1242.) But in spite of such provision, California statutes providing for alienation of homesteads of insane married persons, upon order of the court, have been upheld. (Rider v. Regan, 114 Cal. 667, 46 Pac. 820; Jones v. Falvella, 126 Cal. 24, 58 Pac. 311.)
Minnesota has a similar provision of law requiring “the signatures of both husband and wife” to effectuate alienation of the homestead. (2 Mason’s Minnesota Statutes, § 8340.) But consent to alienation of the homestead by the guardian of an insane person acting under procedure prescribed for conveyance “of any real estate” is held not to contravene the homestead statute. (Hayes-Lucas Lumber Co. v. Johnson et al., 172 Minn. 504, 215 N. W. 857.)
Courts are properly reluctant to reverse prior decisions in the absence of very cogent reasons for doing so. Within the bounds of reason and justice the doctrine of stare decisis rightfully commands respect. But where a wrong decision results in continuing injustices it should not be permitted to stand and particularly so where it cannot be said that any vested rights would be adversely affected by reversal. In the instant case the only “rights” that would be interfered with would be those of adjoining landowners and oil companies who are' now permitted to drain away the oil which belongs to appellee and his stricken wife. Furthermore, as it has been pointed out in discussions of the stare decisis doctrine, if the court has misconstrued a provision of the constitution there is more reason to set the decision aside than there is to reverse a judicial misconstruction of a statute. In the latter case a comparatively easy remedy may be found through appeal to the legislature. But where the court has wrongly construed a provision of the constitution the chance of relief by constitutional amendment is remote. This principle was clearly stated in a very able opinion written by *347the late Justice Henry Mason, of this court, in Weaver v. Bank, 76 Kan. 540, 544, 545, 94 Pac. 273, in which a former decision holding the homestead exemption of the constitution was not available to a single person or to a surviving spouse who had no children living with him was reversed. And why should persons deserving relief from a wrong interpretation of the constitution be required to seek the difficult and costly remedy of constitutional amendment? Surely there is nothing unconstitutional in a correction by the court of its own erroneous interpretation.
The rule of Locke v. Redmond should be set aside and a sound construction adopted which will effectuate the spirit and purpose of the homestead exemption.
Smith and Allen, JJ., concur in the views expressed in the special opinion by Mr. Justice Hoch.