(concurring): I agree that the homestead provision of the state constitution relative to “joint consent” to alienation (art. 15, § 9) is not applicable to this case for the reason that no judicial relationship of husband and wife exists. But the position taken by *439the lower court is readily understandable. It evidently considered itself bound by the construction of the word “consent” upon which our old cases dealing with the “joint consent” provision were plainly based. (See Starke v. Starke, 155 Kan. 331, 125 P. 2d 738.) If “consent” cannot be given by the probate court for an incompetent spouse, ward of the court, then the court is equally powerless to give such “consent” for and in behalf of an incompetent ward who has no living spouse. To hold otherwise would produce the anomalous and absurd result that if the incompetent ward has no spouse the court may give consent for and in behalf of the ward, after proper showing, but if the ward has a competent spouse who asks that the same action be taken in protection of his and the ward’s interests the court is powerless to join the competent spouse in giving such “consent.” The trial court was right in the view that as far as the power to give “consent” is concerned there is no basis for any distinction between the two classes of cases. But we have here reached the only sound view with reference to the power of a probate court to give “consent” for its incompetent ward. Without the authority to give consent for the ward, after proper showing, probate courts would be powerless in countless cases to discharge the duty imposed upon them of protecting and safeguarding the homestead and other property interests of their wards.
Smith, J., joins in the foregoing concurring opinion.