Henshaw, J., dissenting. I dissent, under the conviction that the act in question is unconstitutional. Section 1 of that act is as follows: “In case of a homestead, if either the husband or the wife shall become-hopelessly insane, upon application of the husband or wife not insane to the probate court of the county in which said homestead is situated, and upon due proof' of such insanity, the court may make an order permitting the husband or wife not insane to sell or convey or mortgage such homestead.”
Section 2 provides for publication and service of notice of the application.
Section 3 makes necessary the filing of a petition, and prescribes what it shall contain.
Section 4 declares that if the court shall make the order contemplated by section 1, the same shall be entered upon the minutes, and thereafter any sale, conveyance, or mortgage made in pursuance of such order [677]•shall be as valid and effectual as if the property affected thereby was the absolute property of the person making such sale, conveyance, or mortgage in fee simple.
It is first to be noted that the statute is applicable, not to any particular class or kind of homesteads, but to all homesteads, whether declared upon community property, or upon the separate property of one or other of the spouses—whether declared by their joint act, or by the act of either. While the homestead exemption is •only to the amount of five thousand dollars, yet real property of any value may be impressed with the homestead character, and when so impressed, that character attaches to all of the property. Thus a homestead may be declared upon the separate property of the wife of the value of forty thousand or fifty thousand dollars. Should the wife become hopelessly insane, that homestead, at the instigation of the husband, could be subjected to sale.
Next, it is to be observed that the authority to order the sale is not made to depend upon a determined need or advisability therefor. No question of the necessity of the support of the sane or insane spouse, or of minor children, or other dependent persons, is necessarily involved. The bald fact that one party to a marriage has become hopelessly insane, and that there is a homestead, whether upon community property or upon the separate property of the insane spouse, is all that is necessary to warrant the order of sale.
Again, it is to he seen that the act makes absolutely no provision for distribution or disposition of the funds ■arising from the sale. The power of the court ceases when, by its order, it authorizes the sale to be made. The interest of the insane' person is in no way protected. Neither the money received, nor any part of it, is required to be devoted to his support, or to the support of any person dependent upon him. The result might be, as in this case it was, that the property of the insane owner was sold, and the moneys turned over to a third person who had not the slightest legal claim upon him or it.
[678]There are yet other matters in which this act is at least peculiar. Not only does it authorize the sale o-f the land of an insane person, without protecting his interests in the proceeds of the sale, but it fails even to provide, for the appearance of a guardian. The proceedings are begun and the sale made by a person standing in no fiduciary relation to him. There is no supervision by the court of the sale, no bond is exacted of the seller. The sale may be a gift, as in fact this was, or the price maybe entirely inadequate. Yet no one is empowered to check any fraud which may be committed upon the unfortunate owner. He is stripped of his property without a hearing and without redress, because, having a homestead, he has become insane.
There is a species of legislation to which Judge Cooley has given the name “ prerogative remedial legislation,” that is not obnoxious to the law. It is based upon the recognized power of the legislature, as parens patrise, to pass proper rules and regulations for superintendence, disposition, and management of the property of infants, lunatics, and others under disability. Within the legitimate scope of such legislation is the power which may be conferred upon one standing in a fiduciary relation to a minor or incompetent, to change the character of the estate, and even to dispose of its proceeds, when it is to the interest of the minor or incompetent that such should be done. But in all such legislation there is no determination of adversary rights, no deprivation of any person of his property. Says Judge Cooley: “This species of legislation may perhaps be properly called prerogative remedial legislation. It hears and determines no rights. It deprives no one of his property. It simply authorizes one’s real estate to be turned into personal.” (Cooley on Constitutional Limitations, 122.) In Paty v. Smith, 50 Cal. 153, this court gravely doubted the power of the legislature to direct a sale of the real estate of an infant by one other than a duly appointed guardian. That act provided, however, that the person making the sale should account for the proceeds to the [679]probate court, and this court assumed that the statute contemplated the appointment of that person as guardian by the probate court. In Brenham v. Davidson, 51 Cal. 352, the act under consideration authorized the guardian of an infant to sell the real estate, subject to the approval of the probate court, for the purpose of enabling the guardian to reinvest the proceeds in other property for the benefit of the ward. It was declared that such an act was not an assumption of judicial power by the legislature, and this court quoted with approval the language of Judge Cooley to the following effect: “The rule upon this subject, as we deduce it from the authorities, seems to be this: ‘If the party standing in position of trustee applies for permission to make the sale, for a purpose apparently for the interest of the cestui que trust, and there are no adverse interests to be considered and adjudicated, the case is not one which requires judicial action; but it is optional with the legislature to grant the writ by statute, or to refer the case to the courts for consideration, accordingly as one course or the other, on consideration of policy, may seem desirable/ ”
But in these cases, and in the many others which we have examined from sister states, the acts have been upheld because it was apparent from them that the interest of the minor or incompetent was fully protected, and that the statutes were in their operation beneficent. Thus, in Rice v. Parhman, 16 Mass. 326, the court says: “The only object of the authority granted by the legislature was to transmute real into personal estate for purposes beneficial to all who were interested therein. .... No one imagines that under this general authority the legislature could deprive a citizen of his estate.”
Authorities need not be multiplied upon so plain a proposition. - We are here confronted with an act entirely different in character, an act which assumes to authorize one not standing in a fiduciary relation to the incompetent to make a sale of his real estate for purposes not connected with the incompetent’s interest, neces[680]sities, or convenience, and without making any provision to secure to him his just share of the proceeds of the sale.
We are not in this concerned with a definition of the particular character of the wife’s interest in a homestead declared upon the community property. Whether that interest amounts to an estate, or whether it be a mere expectancy, it is unquestionably true that the husband, in whom is vested the sole right of control and disposition of the community property, has a legal interest therein. This legal estate has a money value. When a sale of the homestead is made it involves a sale of an estate in realty belonging to him. By the act under consideration he is neither secured in that property, nor is it devoted of necessity to any legitimate purposes. Our attention has not been directed to the decisions of any courts in which an act like this has been construed and upheld, nor would we, against the great weight of reason and authority, be inclined to follow them if any such could be found.
Respondent, it is true, makes reference to the case of Forbes v. Moore, 32 Tex. 195. It is there said: “During the insanity of the husband the wife is the head of the family, and, as such head, has the legal right to dispose of so much of the common property of husband and wife, or, in case there be none, of the separate property of the husband, as may be necessary to supply the wants of herself and his or her children.” But in the later case of Heidenheimer v. Thomas, 63 Tex. 287, this language is considered, and it is said that, in so far as it seems to indicate a rule different from the true one, it must be regarded as obiter, and of no binding force. And in Texas etc. Ry. Co. v. Bailey, 83 Tex. 19, the court quotes with approval the language of Heidenheimer v. Thomas, supra: “We are of the opinion .that no such power rests in the wife of an insane person, at least in reference to community property or the separate property of the husband. The law provides for just such a [681]case, and renders unnecessary the exercise of any such power by the wife.”
We are not here called upon to say whether or not the legislature has the power to accomplish what seems to have been the principal purpose of this act, namely, to subject the community property or the separate property of an insane spouse to the support of those legally dependent upon him. It is enough to say that the attempt which finds expression in an act such as this is inadequate, improper, and unconstitutional, and amounts to but the confiscation of the property of a person without provision for the distribution of that property, and for no other reason assigned than that he has met with the most lamentable misfortune of becoming hopelessly insane.
The judgment and order should be reversed, and the cause remanded.
Temple, J., and Harrison, J., concurred in the dissenting opinion.
Rehearing denied.