[Kent et al. v. Mansel et al.] 2104. This court will presume in this proceeding that the evidence to establish the necessity for the sale of the lands, in the probate court, was ample and sufficient, and that the statutory requirements were complied with in the taking of depositions.-Beadle v. Davidson, 75 Ala. 494; Guilmartin v. Wood, 76 Ala. 204; Strang v. Moog, 72 Ala. 460; McDonald v. Mobile Life Ins. Co., 65 Ala. 358; Ex parte Sims, 44 Ala. 248; Ex parte Morris, 44 Ala. 361; Well's Res Adjudicata, § 217. GEORGE F. MOORE and WILLIAM W. HILL, contra.-(1) The witnesses by whom the necessity for the sale of the lands was proved, in the probate court, were not disinterested witnesses as required by the statute, and, therefore, the purchaser did not obtain the legal title to the lands purchased, and could not convey a legal title to his vendee, Randolph Kent, who was the ancestor. Stevenson v. Murray, 87 Ala. 442, 6 So. Rep. 301; Wilson v. Holt, 83 Ala. 528. (2.) The petition for the sale of the lands by the administrator of the estate of William Mansel was not sufficient to confer jurisdiction upon the probate court for the sale of the lands.-Abernathy v. O'Reilly, 90 Ala. 495, 7 So. Rep. 919; Bingham v. Jones, 84 Ala. 202, 4 So. Rep. 409; Meadows v. Meadows, 73 Ala. 356; Robertson v. Bradford, 73 Ala. 116; Robertson v. Bradford, 70 Ala. 385; Tyson v. Brown, 64 Ala. 244; Wilburn & Co. v. McCalley, 63 Ala. 436. HARALSON, J.-Under Abernathy v. O'Rielly, 90 Ala. 495, 7 So. Rep. 919, the petition in this case would be insufficient to support the sale; but, that case has been overruled, and we have since held the same averments, in other petitions, to be sufficient.-Cotton v. Holloway, 96 Ala. 544, and Smith v. Brannon, 99 Ala. 445. Section 2111 (2455) of the Code provides, in cases for the sale of lands for the payment of the debts of an intestate, that "the applicant must show to the court, that the personal property of the estate is insufficient for the payment of debts; and such proof must be made by the deposition of disinterested witnesses." The point is made in this case, that the proof that the personal property of the estate was insufficient to pay its debts, was made by interested witnesses, and the order of sale is, therefore, void. The two witnesses examined were Wm. T. Hatchett [Kent et al. v. Mansel et al.] and H. W. Clark. It nowhere appears that Wm. T. Hatchett, the administrator of the estate, was the same person who was examined in the proceeding as a witness. Identity of name, as has been held, is presumptive evidence of identity of person, in the absence of evidence showing that the name is borne by two or more persons in the same community.-Garrett v. State, 76 Ala. 18; Wilson v. Holt, 83 Ala. 529, 3 So. Rep. 321; Stevenson v. Murray, 87 Ala. 445, 6 So Rep. 301. H. W. Clark, as his evidence taken in that proceeding shows, was a creditor of the estate, whose debt was to be paid out of the proceeds of the sale; but, if interested on that account, which it is unnecessary to determine, or if said Hatchett was in fact an interested witness, such interest, on the part of either or both of the witnesses, can not affect the conclusion we reach. The order of sale of said lands, made by the probate court, is not set out in the agreed statement of facts appearing in the transcript, on which the case was tried in the circuit court. The statement is made, simply, that the court rendered a decree ordering said lands to be sold for the payment of the debts of said estate. The duty devolved on the probate court, having acquired jurisdiction in the premises, to determine whether or not the evidence in the proceeding had been taken in the manner required by the statute, upon which a valid order of sale could be made, and was sufficient for that purpose, and if the court found it was so taken and was sufficient, the adjudication is final and conclusive on all persons, however erroneous, unless set aside on appeal.-Goodwin v. Sims, 86 Ala. 107, 5 So. Rep. 587. We must presume, that the order or judgment of the court contained all that was necessary to uphold its validity, including the finding, that proof of the necessity of the sale to pay the debts was made by disinterested witnesses, and was sufficient. We have recently held, that proof by one such witness was sufficient.Thompson v. Boswell, 97 Ala: 570, 12 So. Rep. 809. We have been referred to the case of Stevenson v. Murray, supra, as supporting the contention of appellees. But, it is there expressly and correctly stated, that "when the attack [on an order of this character] is collateral, either by the validity of the order being drawn in question incidentally, in other suits or proceedings, [Herring et al. v. Ricketts et al.] [as is the case here], or by a petition to vacate the decree made, in and at a subsequent term of the court which rendered it, the rule is well settled with respect to this, as well as all other judgments and decrees in cases in which jurisdiction has attached, that the matter relied on as avoiding the adjudication must appear affirmatively on the face of the record."-Pettus v. McClannahan, 52 Ala. 55. Presuming, as we must, that no such invalidity appears on the face of the order of sale, we hold that the court erred in giving the general charge in favor of defendants, and in refusing to give it for the plaintiffs. Reversed and remanded. Herring et al. v. Ricketts et al. 1. Probate of a will; service of notice on infants. In a proceeding for the probate of a will, service of notice upon infants next of kin by handing them a copy is insufficient to bring them into court; the copy should have been left with the father, mother, guardian, or other person having the custody of the minors. 2. Appointment of guardian ad litem for infants.-Until infants are brought into court by a service of process, according to the rules of practice, the appointment of a guardian ad litem for them is unauthorized, irregular, and not sufficient to support a decree against them. 3. Probate of a will; notice thereof.—If a will is admitted to probate without legal service of notice upon the persons who are by law entitled thereto, the probate will be vacated and revoked on their application. 4. Application to vacate probate of a will; no presumption in favor of the probate.—On the application to vacate the probate of a will, there is no presumption in favor of the order of probate, the petition to vacate being a direct and not a collateral attack. APPEAL from the Probate Court of Jefferson. This proceeding was commenced by a petition addressed to the probate judge to set aside, annul and vacate the probate of the will of Mary A. Thompson, deceased. The petition was filed by Mattie J. Herring and others [Herring et al. v. Ricketts et al.] and against W. A. Ricketts, administrator de bonis non, others. All the facts that are necessary to an understanding of the decision of this court are sufficiently stated in the opinion. On the final hearing of the cause, the probate court refused the prayer of the petition, and dismissed the same. Hence this appeal. MCGUIRE & COLLIER and J. M. RUSSELL, for appellants. There was no sufficient service upon the infants, next of kin of the proponent in the proceedings to probate the will.-Bruce v. Strickland, 47 Ala. 195; Ingersoll v. Mangam, 84 N. Y. 624; 24 How. 202; 62 How. 46; 17 Abb. (N. C.) 100; 83 N. Y. 113; 15 N. Y. 158; 11 N. E. Rep. 885; Cook v. Rogers, 64 Ala. 408; McIntosh v. Atkinson, 63 Ala. 241; Hodges v. Wise, 16 Ala. 509; 4 Ala. 248; 19 Ala. 810; 1 Ala. 495; 37 Ala. 571; 63 Ala. 241; 72 Ala. 322. The petitioners in the present case were entitled to have the probate of the will vacated and revoked.—4 Ala. 248; 6 Ala. 166; 15 Ala. 495; 19 Ala. 810; 21 Ala. 587; 27 Ala. 597; 30 Ala. 88; 40 Ala. 245; 47 Ala. 295; 64 Ala. 410; 81 Ala. 430. WEBB & TILLMAN, contra.-In the probate of wills, the probate court is a court of general jurisdiction, and every intendment must be indulged in favor of its acts. Acklen v. Goodman, 77 Ala. 522; 2 Brick. Dig. 530, § 83. The probate of a will is a proceeding in rem, not void, but voidable for irregularities.-Kumpe v. Coons, 63 Ala. 455; Dickey v. Vann, 81 Ala. 425, 8 So. Rep. 195. If there were irregularities in the probate of the will, it was the court's duty to re-probate the same.Bradley v. Andress, 27 Ala. 596. MCCLELLAN, J.-This is a proceeding in the probate court to set aside, annul and vacate the probate of the will of Mary A. Thompson, deceased. The application for probate was filed by Wm. M. Thompson, one of the next of kin of the testatrix. He was a minor, as were also all the next of kin, six in number, four of them being under fourteen, and one, the youngest, only three years of age. The grounds of the present application are, that notice of the proceeding for probate was never [Herring et al. v. Ricketts et al.] legally served on these infants, and that no guardian ad litem was appointed, or consented to act, or is shown by the record to have acted for them on the hearing of the petition for probate. The record shows that service of the notice was made, in each instance, by handing a copy to the infant next of kin. By all the authorities this was not a sufficient service upon them: the copy should have been left with the father, mother, guardian, or other person having the custody of the minor defendants.-Warner on Service, 6; McIntosh v. Atkinson, 63 Ala. 241; Cook v. Rogers, 64 Ala. 408; Carter v. Ingraham, 43 Ala. 78; Gayle v. Johnston, 80 Ala. 395. Statutes and rules of this court prescribing the manner of service upon infants are strictly construed, and must be strictly complied with.Coster v. Bank of Georgia, 24 Ala. 37; Carter v. Ingraham, 43 Ala. 78. There was, therefore, more than mere irregularity of service on the next of kin of the testatrix; there was in truth no legal service at all upon them, and they were not before the court.-Bruce v. Strickland, 47 Ala. 195. There being no service upon these infants, the appointment of a guardian ad litem for them was unauthorized, and, to say the least, irregular; and this, of course, though the appointee consented to act, and appearance of such guardian had in other respects been formal and regular.-10 Am.. & Eng. Encyc. of Law, pp. 690-91; Clarke v. Gilmer, 28 Ala. 266; Bondurant v. Sibley's Heirs, 37 Ala. 565; McIntosh v. Atkinson, supra; Cook v. Rodgers, supra; Irwin v. Irwin, 57 Ala. 614. Under the settled doctrine of this court, applicable to the state of case presented by this record, the probate court, in our opinion, should have granted the petition of appellants, Herring and others, and, in consonance with its purpose and prayer, have vacated, set aside and revoked the probate of the will of Mary A. Thompson, deceased. As was said in Kirby v. Kirby, 40 Ala. 495: "Under a practice established in this State by a series of decisions, which from their long standing should not now be questioned, it is settled that any distributee of the estate of the testator, entitled to notice of the probate of the will, and not having received such notice prior to the probate, may make an application to the court in which the will was probated to vacate and revoke the |