(dissenting): The majority decision by analogy I fear may cast upon the titles to much real estate in Kansas a cloud of contestable incertitude. Prior to the declaratory judgment the proper probate court had decreed that the involved property was not the homestead of the incompetent husband. The decision of this court now is, in substance, that because the incompetent’s guardian may have had an interest possibly adverse to the best interests of the incompetent, such possibility necessitated the appointment of a guardian ad litem and that the failure to make such *187appointment, together with the absence of any notice to the incompetent, resulted in the probate court not having jurisdiction. This court holds that such omissions and the fact that the property was actually a homestead may be asserted in a collateral attack upon the probate court’s decree. As a consequence, examiners of title in this state must determine whether sales by guardians, though made with the approval of the probate court, are tainted with the possibility of the guardian having had an adverse interest unless such court appointed a guardian ad litem for the incompetent or gave the mentally incompetent, uncomprehending person some notice to comprehend. The rule that a possibility of adverse interest and lack of notice necessitate the appointment of a guardian ad litem is not limited to cases of homesteads if the logic of the majority opinion is to be followed. Clearly, examiners of title cannot rely upon a finding of a probate court that property is not a homestead unless the rule has been complied with. If such be the law, the situation is sad because the examiners’ determinations cannot be regarded as the equivalent of judicial decisions and scores of quiet-title suits may follow. Analysis of the serious problem necessitates further consideration of the facts.
The record in the instant case discloses that the proceedings in the probate court were instituted by the incompetent’s legally-appointed guardian. All parties to the action concede that the guardian acted at all times in furtherance of the best interests of her insane spouse and their children. The incompetent husband has not been deprived of a homestead. The record indicates that he may have acquired a better one. The contention is advanced by counsel for the plaintiff that the probate court’s conclusion to the effect that the involved property was not a homestead was not even erroneous. In support of such contention they assert that some of our decisions hold that the constitutional prohibition against alienation of a homestead without joint consent continues only so long as the property is “occupied as the residence by the family of the owner; . . .”; that the Newton property was not so occupied; and further that no party, competent or otherwise, can claim a homestead interest in two properties at the same time. It is, therefore, argued that the probate court in the instant case properly found that the Newton property was not the homestead of the incompetent. This court need not reach .decision on the question. The point is the probate court passed on the question regardless of whether the judgment *188was correct. There is no contention that the probate court did not act in good faith in reaching its judgment and there is no contention of fraud or lack of good faith on the part of the guardian. Later, in the declaratory judgment action the district court held, in substance, that by reason of facts asserted for the first time in such action, the involved property was the homestead of the incompetent person. It is apparent that the district court’s finding to such effect directly contradicts the opposite finding made by the probate court. True it is, that the district court’s conclusion may have been justified by additional facts not considered by the probate court in making its finding but the issue was the same.
The determination of whether property is a homestead may turn upon a finding of fact, a rule of law, or the result may follow from an amalgamation of the two. The attack made in the declaratory judgment action upon -the finding previously made by the probate court was collateral and ineffectual unless the probate court was without jurisdiction. (See Clevenger v. Figley, 68 Kan. 699, 75 Pac. 1001.) Before giving the question of jurisdiction consideration, it may be advisable to note that even an erroneous judgment may become a finality. (See Hoover v. Roberts, 146 Kan. 785, 74 P. 2d 152; and In re Estate of Bourke, 159 Kan. 553, 156 P. 2d 501, and cases cited therein at page 559.) It is also well settled that decisions rendered within the jurisdiction of the probate court are as conclusive as judgments rendered by the district court (Parsons v. McCabe, 127 Kan. 847, 275 Pac. 173, and Ward v. Krhounek, 151 Kan. 414, 99 P. 2d 800), and that they cannot be collaterally attacked in a subsequent proceeding. (Cole v. Thacker, 158 Kan. 242, 146 P. 2d 665.) Jurisdiction does not depend upon the correctness of a judgment. (Manley v. Park, 62 Kan. 553, 562, 64 Pac. 28; Eberhardt Lumber Co. v. Lecuyer, 153 Kan. 386, 388, 110 P. 2d 757; Thompson v. Terminal Shares, 89 F. 2d 652; 21 C. J. S., Courts, § 27.) The foregoing may serve as sufficient to develop that the district court’s ruling was erroneous if the probate court had jurisdiction to determine that the property was not a homestead. Did the probate court have such jurisdiction?
The legislature, in passing G. S. 1945 Supp. 59-1808, vested in the probate court authority to determine whether involved property was a homestead. For clarity and expediency, the statute is repeated:
“The guardian of the estate of a spouse may, with or without notice, upon *189order 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.)
The foregoing is the only statute we have which pertains, with particularity, to the alienation of the inchoate interest of an insane spouse. The interest of a spouse in a homestead may differ from an inchoate interest in other property but the distinction is not significant in this case. Though it is elementary, nevertheless it should be noted that an interest even in a homestead may arise and exist only by reason of a marriage relationship with the owner of the property. No instrument is needed to create it and it does not descend to heirs. (See Jenness v. Cutler, 12 Kan. 500, 516.) Consequently, it may follow that the legislature deliberately intended to place such an interest in a different category or classification than interests otherwise acquired in real property. It may be observed that under the wording of the statute the inchoate interest of an insane spouse may be mortgaged, leased or sold, if the property is not a homestead, by the guardian of an insane spouse, without notice and the statute does not require the appointment of a guardian ad litem. It should be noted further that under the wording of the statute the probate court can determine whether the property is a homestead also with or without notice and that no statute specifically requires the appointment of a guardian ad litem in instances wherein the insane spouse possibly may have a homestead interest in the involved property. It is equally obvious that unless the involved property is found to be a homestead by the court vested with authority to make such determination, the constitutional prohibition against the alienation of a homestead has no application whatever.
The act of the legislature which vests the probate court with authority to make such determination has constitutional sanction. Section 8, article 3 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, . . .” Thus, the constitution provides that probate courts shall have jurisdiction and care of the estates of persons of unsound mind, which estates include, of course, the interest of an insane spouse in and to a possible homestead. Therefore, we have in the present case an instance wherein a probate court, vested with consti*190tutional and statutory authority, made an essential finding that the property was not a homestead.
Was it necessary for the probate court to give notice to the insane spouse or to appoint a guardian ad litem for him? As hereinbefore developed, the applicable statute does not make any such requirements. No statute prohibits the husband or wife from being the guardian of an insane spouse. And there is no proper presumption that the marriage relationship casts a shadow of impropriety or an insinuation of adverse interests when such a guardian institutes court proceedings for the purpose of determining whether property is the homestead and for obtaining authority to sell property in which the insane spouse has an interest. In the present case a legally-appointed guardian, having statutory authority, filed a proceeding in the proper court for a proper determination, and all statutory requirements were complied with. Surely, a court should hesitate to hold in such circumstances that the suspicion or the possibility of adverse interests would defeat jurisdiction. But perhaps decision should not turn upon the guardian’s good faith because it is possible to conjecture a case in which the guardian might be contemplating action which would be adverse to the best interests of the insane spouse and the jurisdictional question would be the same. It should be noted, however, that we do not have before us a ease in which the incompetent’s interests were considered by the court without notice and without the incompetent being represented in the court by one having statutory authority to do so. Insofar as the question of jurisdiction is concerned, when the plaintiff filed the action in the probate court as guardian of her incompetent husband, the incompetent was represented in court to the same extent as if the guardian had not been related to the incompetent husband in any manner. If this court would read into the statute a requirement that a legal guardian cannot file in the probate court a petition for the purpose of obtaining authority to sell the inchoate interest of the incompetent, the court would be passing legislation contrary to that which the legislature has seen fit to enact. Is it not equally correct to say that the legislature only can require a guardian ad litem must be appointed when the legal guardian is the spouse of the incompetent and homestead interests possibly are involved? Not only is there an absence of any legislation requiring a guardian ad litem to be appointed in such circumstances, but the legislature has specifically provided that the necessity for the appointment of such a *191guardian shall be left for determination to the discretion of the probate court. G. S. 1945 Supp. 59-2205, reads:
“The petition of a person under legal disability shall be by his guardian or next friend. When it is by his next friend the court may substitute the guardian, or any person, as the next friend. The court may appoint a guardian ad litem in any probate proceeding to represent and defend a party thereto under legal disability.” (Emphasis supplied.)
It may be noted again that there is no limitation placed upon the application of the last-cited statute when the petition seeks authority to sell an interest in a possible homestead. It follows, therefore, that insofar as the applicable statutes and the constitutional provisions are concerned, the question to be decided was before a tribunal having jurisdiction of the subject matter and of the rights of the incompetent because his legally appointed guardian had invoked the jurisdiction of the proper court for a determination of a proper question. In such circumstances, the best interests of the incompetent became the concern of the court. See the extended consideration of this subject in Lockridge v. Glace, 158 Kan. 431, 147 P. 2d 726, the fourth syllabus of which reads as follows:
“It is not the consent of the guardian to the sale of his ward’s real estate, but the judgment or decree of the probate court, charged by law with the management, supervision and care of the person and property of its wards, that is binding upon a ward.”
In the Lockridge case, supra, there was no guardian ad litem appointed and the involved property was a homestead. See, also Starke v. Starke, 155 Kan. 331, 125 P. 2d 738, and particularly the dissenting opinion by Mr. Justice Hoch in which the right and duty of the probate court to protect the interests of incompetents in homesteads is considered at length. I concede that Lockridge v. Glace, supra, and Starke v. Starke, supra, are not analogous in all respects to the present case but they support the assertion that there is no constitutional or statutory necessity for the appointment of a guardian ad litem in order to give the probate court jurisdiction because the rights of incompetents are the concern of the court. And such theory may well account for the absence of any statutes requiring the appointment of a guardian ad litem when the inchoate-in-character interest of an insane spouse in a possible homestead is involved. The presumption is that courts will act prudently and properly. The legislature has been content to leave the *192question of the necessity for the appointment of a guardian ad litem to the discretion of the probate court, and there is no necessity for this, court in this case to inject into the probate procedure any requirement which the legislature has not seen fit to make. Incidentally, it may be noted that the legislature has not seen fit to require the appointment of a guardian ad litem not only in connection with G. S. 1945 Supp. 59-1808, supra, and G. S. 1945 Supp. 59-2205, supra, but has left the question of the advisability of the appointment of a guardian ad litem to the discretion of the probate court in G. S. 1945 Supp. 59-2254, which pertains to a minor’s interest in trust accountings, and under the provisions of G. S. 1945 Supp. 59-2303 and 59-2304 whereby the probate court is granted power to sell, lease or mortgage all of the real estate described in the guardian’s petition without the appointment of a guardian ad litem being required, even though in some instances notice to the ward is required. However, if the probate court did not have jurisdiction for the reasons set forth in the majority opinion and in the cited authorities supporting the same, then the probate court’s conclusion was void and subject to collateral attack. Consequently, further consideration must be given to the majority opinion.
The majority opinion cites Osment v. Trout, 156 Kan. 120, 131 P. 2d 640. Without detailing the facts in such case, it is sufficient to note that.the order which authorized the payment of improper expenses from the minor’s estate ultimately was appealed from by a guardian ad litem. The cited case is not one of collateral attack. And there was also a failure in such case to comply with certain mandatory statutes. The opinion in the case sets forth that the failure of the probate court to appoint a guardian ad litem in the circumstances was an abuse of discretion. But an abuse of discretion is a trial irregularity which may render a judgment voidable but not void and therefore not subject to collateral attack. (See Moffett v. Robbins, 81 F. 2d 431, certiorari denied 56 S. Ct. 940, 298 U. S. 675, 80 L. Ed. 1397; Bradford v. Larkin, 57 Kan. 90, 45 Pac. 69; Eberhardt Lumber Co. v. Lecuyer, supra; and Bitzer v. Smith, 158 Kan. 83, 145 P. 2d 148.) As the majority opinion in the present case sets out, it was stated in the Osment case, supra, “. . . that an order made without notice and without appointment of a guardian ad litem . . . was not a final order . . . It is obvious that in such case there was no one to appeal.” Original jurisdiction is not affected by the absence of a right of appeal. As was said by *193Mr. Chief Justice White in Ex parte Abdu, 247 U. S. 27, 62 L. Ed. 966, 38 S. Ct. 447:
“The error results from disregarding the broad-distinction which exists between the right to be heard in courts of justice, on the one hand, and the necessity for the granting of authority, on the other, to review the results of such hearing by proceedings in error or appeal, [citing cases.]” (p. 30.)
See, also, 2 Am. Jur., Appeal and Error, § 6. Insofar as jurisdiction is concerned, there is no constitutional prohibition against vesting the probate courts with sole jurisdiction to determine whether the rights of incompetents in real estate are in a homestead. For the purpose of establishing jurisdiction, it is sufficient if a court of justice vested with statutory and constitutional authority makes a judicial determination of a litigant’s rights. As hereinbefore set forth, the constitution of Kansas vests in the probate courts jurisdiction and care of the estates of persons of unsound minds and such jurisdiction is not lost because in some instances there may be no one to appeal from the exercise of it. For the reasons given, it may be respectfully asserted that the Osment case, supra, is not controlling on the question of jurisdiction. Neither are the cases of Paronto v. Armstrong, 161 Kan. 720, 171 P. 2d 299, and In re Estate of Schroeder, 158 Kan. 783, 150 P. 2d 173, which are cited in the majority opinion. In both of the last-cited cases the interested parties not only were not given any notice but they were not represented by any one having statutory authority to represent them. But in the present case the incompetent person was represented in court by his legally appointed guardian. Surely, it must be said that such representation was sufficient to invoke the jurisdiction of the court; otherwise the court would not have had jurisdiction even to appoint a guardian ad litem in the exercise of the court’s discretion. And such jurisdiction was not lost by a failure to appoint a guardian ad litem because neither the constitution nor the statutes make such a requirement. There was no necessity for the incompetent husband being given notice in order for the court to have jurisdiction. The statute does not require it and no inquiry was being made as to the mental capacity of the plaintiff’s husband. His incapacity had been previously determined.
The majority opinion states that the case of Magnolia Petroleum Co. v. Moyle, 162 Kan. 133, 175 P. 2d 133, is analogous. Such case involves the limited jurisdiction of a court under tax statutes which must be strictly construed in favor of taxpayers. In such cases the *194sovereign duty of the state is involved. It is held essential to fair dealing between a sovereign and its citizens that the state shall not deprive a citizen of property because of delinquent taxes if, in fact, no delinquent taxes exist against the property. The doctrine is a well-recognized exception to the general rule prohibiting collateral attacks. The doctrine ordinarily should not be extended to cases wherein the duty of the sovereign to protect the interests of its citizens against its own acts of oppression is not involved. It should not be held that the instant case comes within such an exception to the general rule. The present case comes clearly within the rule set forth in the case of In re Wallace, 75 Kan. 432, 89 Pac. 687, the first syllabus of which reads:
“Where the jurisdiction of the court depends upon a fact which the court is required to ascertain and decide its judgment, determining that the fact does exist is conclusive evidence of jurisdiction until set aside or reversed by a direct proceeding.”
See, also, the cases which have followed such case as shown by Shepard’s citator.
In holding that the failure to appoint a guardian ad litem in the circumstances of the present case deprived the probate court of jurisdiction, this court is holding contrary to the weight of authority upon the question. In 27 Am. Jur. 842, § 121, Infants, the rule will be found stated as follows:
“While the appointment of a guardian ad litem for an infant defendant is not jurisdictional in the sense that failure to make such appointment deprives the court of power to act and renders such judgment void, a judgment rendered against an infant in an action in which he was not represented by a guardian ad litem or a general guardian is erroneous, and can be overthrown by writ of error coram, nobis, or by motion in the same court, or by proper appellate proceedings, . . .”
The general principles incident to jurisdiction in this case will be found stated in almost any standard text. Even though it may be conceded that it would have been much better practice for the probate court to have appointed a guardian ad litem, nevertheless, the failure to do so when the incompetent spouse was represented in court by a legal guardian would not result in a lack of jurisdiction. From 44 C. J. S. 325, § 151, Insane Persons, the following is quoted:
“Although it has been held that the want of proper representation of an insane defendant is a jurisdictional defect, which renders the judgment void, ordinarily such want of representation does not render the judgment absolutely void, but merely voidable.”
*195See, also, 43 C. J. S. 279, § 108, which reads:
“A guardian ad litem need not be appointed in a probate court, if the statutes instituting and regulating the practice in such courts do not require such appointment,”
and
. . the weight of authority is to the effect that, where the court has otherwise jurisdiction, a judgment or decree rendered against an infant without the appointment of a guardian ad litem, while it may be erroneous, and subject to be reversed or set aside or to be ground for a new trial, at most is only voidable, but not absolutely void; ... It remains in full force and effect until it is reversed on appeal or error or set aside by direct proceedings, and is not subject to collateral attack; . . .”
The rule is the same whether the incompetent person be an infant or otherwise incompetent. Moreover, in Kansas a rule prevails which is stated in Seaverns v. Taylor, 133 Kan. 268, 299 Pac. 931, as follows:
. . If there is doubt as to the jurisdiction of a court of general jurisdiction with reference to a judgment rendered by it, the presumption is always in favor of its jurisdiction (Bank v. Security Co., 65 Kan. 642, 70 Pac. 646), and the same rule extends to the judgments of the probate court (Watkins v. Mullen, 62 Kan. 1, 61 Pac. 385).” (p. 272.)
In the present case the majority decision permits a total stranger to the probate proceedings, who had no preexisting, independent and conflicting right, to make a collateral attack upon a judgment which was not unjust as against him. The law in Kansas has not sanctioned such attacks since 1874 when Mr. Justice Valentine wrote the opinion in Simpson v. Kimberlin, 12 Kan. 579.
As hereinbefore indicated, the fact that the legislature has seen fit to require a guardian ad litem to be appointed in proceedings instituted pursuant to G. S. 1945 Supp. 59-2317, which was passed subsequent to the adoption of the constitutional amendment, does not establish that the legislature intended to extend the application of such statute so that guardians ad litem must be appointed when the interest sought to be disposed of is only the semi-inchoate interest of an insane spouse in a possible homestead. If the legislature was of the opinion that it was necessary to appoint a guardian ad litem in such instances, it could have amended G. S. 1945 Supp. 59-1808 at the same time it passed G. S. 1945 Supp. 59-2317, but it did not see fit to do so.
The instant case presents a clear example of the advisability of the rule which restrains courts from invading the legislature’s *196domain. If wisdom directs that a guardian ad litem should be appointed for an insane spouse when the partly inchoate interest of such spouse in a possible homestead may be sold, the legislature should say so, not the courts. If the legislature sees fit to enact such a requirement, the legislation, in all probability, will not be retroactive and will not affect the titles to property acquired prior to its enactment. ' But when this court reads into the statute such a requirement, many titles dependent upon sales previously made by guardians in comformity with existing statutes may become subject to collateral controversies in the courts. •
The ruling of the district court should be reversed. .
Wedell and Hoch, JJ., concur in the foregoing dissenting opinion.