Herring v. Ricketts

• Decision Date: 13 June 1893
• Citation: 101 Ala. 340,13 So. 502
• Parties: HERRING ET AL. v. RICKETTS ET AL.
• Court: Alabama Supreme Court

13 So. 502

101 Ala. 340

HERRING ET AL. v. RICKETTS ET AL.

Supreme Court of Alabama

June 13, 1893

Appeal from probate court, Jefferson county; M. T. Porter, Judge.

Petition by Mattie L. Herring and others against W. A. Ricketts administrator de bonis non, and others, to set aside, annul and vacate the probate of the will of Mary A. Thompson deceased. From an order dismissing the petition, petitioners appeal. Reversed.

McGuire & Collier and J. M. Russell, for appellants.

Webb &amp Tillman, for appellees.

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 William M. Thompson, one of the next of kin of the testatrix. He was a minor, as were also all the next of kin, 6 in number, 4 of them being under 14, and 1, the youngest, only 3 years of age.

The grounds of the present application are that notice of the proceeding for probate was never 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, Serv. Paper, 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, 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 appointment, consent to act, and appearance of such guardian had, in other respects, been formal and regular. 10 Amer. & Eng. Enc. Law, pp. 690, 691; Clark v. Gilmer, 28 Ala. 266; Bondurant v. Sibley's Heirs, 37 Ala. 565; McIntosh v. Atkinson, supra; Cook v. Rogers, 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 probate, and that the same should be granted, if it appear...