The opinion of the court was delivered by
Burch, J.: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 interests. 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, Kan., 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 *181her 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. 1945 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 petiton 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 *182to 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 that 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 in*183competent 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 relationship 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 spouse may, with or without notice, upon order of the probate court, sell, convey, lease or mortgage, any real estate, except the homestead, the title to which is in the other spouse; . . .” (Emphasis supplied.)
By reason of the wording of the statute, it is clear that the statute pertains and is applicable only to the sale of property which is not a homestead.
Counsel for the plaintiff contend that the order of the probate court on September 21, 1946, in which the court found that the property was not a homestead, was binding upon the incompetent and was a final adjudication which cannot be collaterally attacked. Such order specifically found that . . the said premises do not constitute the homestead of any of the parties, . . .” But such order was entered in a proceeding to which the incompetent husband was a party in name only. When the incompetent’s guardian filed a petition in the probate court for authority to sell the property she may have been seeking to sell the property for her own advantage. The personal interest of Mrs. Steinkirchner in filing the petition and her interest as the guardian of her incompetent husband in legal contemplation were adverse and hostile. The incompetent was given no notice of any kind of the filing of the petition or of the hearing upon it and no guardian ad litem was appointed for him. In such a situation, it should not be said that the probate court had jurisdiction of all the necessary parties whose rights were affected. As to the significance of a guardian representing adverse interests, see Osment v. Trout, 156 Kan. 120, 131 P. 2d 640, wherein it was set forth:
*184“Although in instances appointment of a guardian ad litem may be discretionary, where, as here, the appointed and acting guardian was proponent of a claim, failure of the court to appoint a guardian ad litem was an abuse of discretion.” (p. 122.)
The opinion continues:
“Without elaboration, it may be said that an order made without notice and without appointment of a guardian ad litem authorizing a guardian to use assets of her ward to pay a claim proposed by her was not a final order or decision. It is obvious that in such case there was no one to appeal.” (p. 122.)
The plaintiff asserts, however, that the probate code provides that an order such as she procured may be had with or without notice. It cannot be emphasized too impressively that probate courts are not always justified in not requiring notice in proceedings under the provisions of the present probate code when the involved statute reads that the hearing may be held “with or without notice.” If the proceeding is not formal in its nature and the substantial rights of unrepresented, interested parties are involved, a probate court should always require that notice be given to the interested parties even though the statute may read that the hearing may be had “with or without notice.” Notice always should be given if the possible rights of interested parties could be adversely affected by the ruling or finding under consideration by the probate court. In the case of Paronto v. Armstrong, 161 Kan. 720, 171 P. 2d 299, a party claiming to be a custodian of a child filed a petition for guardianship. The involved statute provides that if the petition was filed by a “parent, custodian, or testamentary guardian” the court might hear the same “with or without notice.” This court held, however, that the party filing the petition was not the custodian of the minor child and that under the statute service should have been had upon the ward, a guardian ad litem should have been appointed for him, and that notice should have been given to his nearest kindred. The opinion in the cited case reads:
“The probate code was constructed upon the plan of adversary, as distinct from ex parte procedure. Parties substantially affected by probate court rulings are entitled to be heard. Notice and an opportunity to be heard are essential to due process of law.” (p. 727.)
In the case of In re Estate of Schroeder, 158 Kan. 783, 150 P. 2d 173, this court held that an order of the probate court setting apart land as a homestead without notice to a creditor whose claim was pending in that court, was void as to the creditor for lack of notice. *185The statute involved in the last-cited case also provided that the petition to set aside the land as a homestead could be heard “with or without notice.” But this court held that the creditor had an interest in the question whether the land was to be set aside as a homestead and was entitled to notice of the petition being filed. It follows in the instant case that because the interests of the incompetent might have been adverse to those of his guardian, that a guardian ad litem should have been appointed, and that such omission, together with the failure on the part of the probate court to give the incompetent any notice whatever of the pendency of the proceeding which affected his property rights, resulted in a declaration against his possible interests without due process of law. Consequently, the finding of the probate court to the effect that the involved property was not the homestead of the incompetent was a nullity because the court did not have proper jurisdiction of a necessary party to the action. The finding of the probate court that the property was not a homestead and the order authorizing its sale without jurisdiction were subject to attack, either directly or collaterally, whenever it might be shown, as a matter of fact-, that the real estate was a homestead. For an analogous situation, see Magnolia Petroleum Co. v. Moyle, 162 Kan. 133, 175 P. 2d 133.
In addition to the foregoing, it should be noted that if this court reached a contrary conclusion, the court in effect, would be ignoring a clear indication of legislative intent to preserve and retain the constitutional rights which prohibit the alienation of a homestead without the joint consent of a husband and a wife while that relationship exists. In 1943 the state legislature provided that there should be submitted to the people for adoption or rejection an amended homestead exemption provision. It embodied a provision previously existing, with a proviso reading:
“That the legislature by an appropriate act or acts, clearly framed, to avoid abuses, may provide that when it is shown.the husband or wife while occupying a homestead is adjudged to be insane, the duly appointed guardian of the insane spouse may be authorized to join with the sane spouse in [executing certain mortgages or certain mineral leases].” (Laws 1943, ch. 161, § 1, p. 289.)
The people voted adoption of the proposed amendment in 1944, and the legislature of 1945 passed certain conforming legislation which appears as G. S. 1945 Supp. 59-2314 to 2322, both inclusive, to which reference is made. Thus, it will be seen that the members of the legislature and the people were willing to amend the constitution *186only to the extent of permitting a homestead to be mortgaged or leased under certain carefully-limited conditions clearly framed to avoid abuses. In furtherance of the amendment, which only went to the extent of authorizing the mortgaging and leasing of a homestead, the legislature, in framing legislation to avoid abuses, sought to prevent such abuses in enacting G. S. 1945 Supp. 59-2317, as follows:
“In every proceeding brought under this act and immediately upon the filing of a petition as provided in section 2 [59-2315] of this act, a guardian ad litem shall be appointed for the insane spouse, who shall make an independent investigation of the facts and representations made in the petition, . . .”
It may be added by way of observation that while the resolution for the amendment was pending before the judiciary committees of the legislature in 1943, the committees were asked to enlarge the amendment under consideration by giving a guardian of an insane spouse authority to sell the homestead and that the legislature refused to make this suggested amendment.
Consequently, a holding by this court that a homestead interest in property nan be alienated entirely without the appointment of a guardian ad litem would be wholly inconsistent with the expressed legislative mandate to require such an appointment when the homestead property is only to be mortgaged or leased for certain specified purposes. Surely, it was never intended by those who adopted or amended the constitution or passed the legislation applicable to its amendment that a greater interest in homestead property could be disposed of with less precaution than is required to effect a partial contingent conveyance of a lesser interest therein.
The ruling of the district court, sustaining the demurrer, is affirmed.
Harvey, C. J., and Parker, J., concur in the result.