up must be held as a collateral attack on the validity of the appointment of said administrator by the probate court of Mobile, and cannot be sanctioned.

3. Again, it appears from said petition that said administrator accepted his appointment as such by said probate court, and, acting under the grant, obtained possession of the assets and converted them. Neither the administrator nor his sureties, afterthis, can be heard to question the validity of the grant. That the bond of the administrator, as general administrator, was signed several years before the grant of administration can make no difference, since the obligors signed in reference to the administrations of all estates that might be committed to the hands of the administrator by the order of the probate court of Mobile county: Plowman v. Henderson, 59 Ala. 559; Burnett v. Nesmith, 62 Ala. 261; Person v. Thornton, 86 Ala. 310.

From what has been said, the other questions raised and discussed, if of any merit, necessarily disappear.

We find no error in the ruling of the court below, and its judgment is affirmed.

EXECUTORS AND ADMINISTRATORS-APPOINTMENT — COLLATERAL ATTACK.-The appointment of an administrator rests exclusively within the jurisdiction of the probate court, and its legality cannot be questioned in any other court or collaterally attacked: McFarland v. Stone, 17 Vt. 165; 44 Am. Dec. 325, and note; Driggs v. Abbott, 27 Vt. 580; 65 Am. Dec. 214; Johnson v. Beazley, 65 Mo. 250; 27 Am. Rep. 276. A grant of letters of administration to one who did not live within the jurisdiction of the court at the time of his death is void and may be attacked collaterally: People's Sav. Bank v. Wilcox, 15 R. I. 258; 2 Am. St. Rep. 894, and note. See, also, the notes to Ex parte Maxwell, 79 Am. Dec. 65-67, and Melia v. Simmons, 80 Am. Rep. 748, 749.

DAUGHTRY V. THWEATT.

[105 ALABAMA, 615.]

PROBATE SALES-COLLATERAL ATTACK.-A proceeding In a probate court for the sale of a ward's property is a proceeding in rem, and the jurisdiction of the court attaches when the application for an order of sale, made by the proper party, and disclosing a statutory ground for the sale, is presented to, and recognized by, the court. Whatever of error or irregularity may thereafter intervene. must be corrected by an appropriate revisory remedy, and is not a ground for collateral attack on either the decree or the sale made thereunder.

PROBATE SALES-COLLATERAL ATTACK.-A probate sale of a ward's property for the purpose of reinvestment, made on proper application and showing by the guardian, cannot be collaterally attacked on the ground that it was made without notice to the ward and without the appointment of a guardian ad litem for him,

PROBATE SALES-GUARDIAN AD LITEM.-Probate sales of a ward's property made by the probate court on proper applica tion and showing by the guardian are proceedings in rem, in which the appointment of a guardian ad litem to represent the ward is not required or authorized.

Ejectment. Judgment for defendant and plaintiff appealed. P. B. McKenzie, for the appellant.

G. L. Comer, for the appellee.

616 BRICKELL, C. J. This was a statutory real action for the recovery of two parcels of land situate in the city of Eufaula, in which the appellant was plaintiff and the appellee was defendant. The facts are, that the legal estate in the premises at one time resided in the appellant. In December, 1881, the mother and guardian of appellant, who was then of the age of ten years, in the capacity of guardian, presented to the judge of the court of probate of the county of Barbour, in which county she and the appellant then resided, and in which county the premises were then situate, a petition in writing verified by affidavit, praying an order authorizing the sale of the premises, and for the reinvestment of the purchase money. The material allegations of the petition were that the premises were a residence lot in the city of Eufaula, which could be made a source of income only by renting; that it was expensive to keep them in repair; that owing to their location, and the nature of the property, the income they would yield would be but a small percentage of their actual value, not amounting to legal 617 interest, which would be considerably reduced by payments for taxes, insurance, and repairs, and that the premises were the only real estate owned by the appellant. The judge of probate, having examined witnesses, made an order authorizing the sale of the premises for cash, requiring notice of the time, place, and terms of sale to be given in precise conformity to the requirements of the statute. The sale was made, the purchase money paid, a report of it made, a confirmation of the report by the probate judge, and an order made directing a conveyance to the purchaser which was executed, the purchaser entering into possession, and, under mesne conveyances from him, the appellee deduces title.

The statute under which the proceedings were had provided: "For good cause shown, the judge of probate may authorize the sale of personal and real property of the ward, in such manner as he may direct; and direct its reinvestment in bonds, notes, or bills of exchange, at interest on mortgage security, or in other prop

erty, in the name of the ward; but no sale of real estate must be had on less than forty days' notice, which notice must be published once a week for three successive weeks in a newspaper nearest the place where the sale is to be made; and returns of sales must be made and confirmed as in sales of land by administrators": Code 1876, sec.2785. The jurisdiction conferred on the judge of probate could not be called into exercise without an application disclosing good cause for the sale of property real or personal. The statute is part of a system regulating the relation of guardian and ward, declaring the duties of the guardian, and committing to him the management and control of the ward's estate. He is the proper party to make the application. The application must have shown that the necessities or interests of the ward required the sale; and, when this was shown, the jurisdiction of the judge of probate attached.

It is not controverted that the averments of the petition were sufficient to call into exercise the jurisdiction of the judge, necessitating that he should act and move in its exercise. The proposition is, that he could not proceed to an order of sale without notice to the ward, and without the appointment of a guardian ad litem to represent her. The proceeding the statute authorizes has in it no element of an adversary suit in personam. All 618 such proceedings under analogous statutes authorizing the court of probate, or the judge of the court of probate, to license or confer power on executors or administrators, to make sales of lands, or of personal property, since the case of Wyman v. Campbell, 6 Port. 219, 31 Am. Dec. 677, have been regarded as proceedings in rem; and jurisdiction of the thing, and not of the person, as imparting validity to the proceeding when collaterally assailed: 1 Brickell's Digest, secs. 351, 352, p. 939. The jurisdiction of the judge of probate must have attached, or there could not have been notice to, or the appointment of a guardian ad litem for, the ward. The one or the other would have been but movements in the exercise of the jurisdiction, attaching on the filing of the application for the sale. The notice and appointment of the guardian ad litem would have been vain and nugatory, if the application had not shown good cause for the sale. Without the application there would not have been jurisdiction of the subject matter, and jurisdiction of the person, however plenary, could not have rendered the order of sale valid. The principle is now too firmly ingrafted on our jurisprudence to be drawn into controversy, that in proceedings of this character, the jurisdiction of the court of probate, or of the judge of

probate, attaches when an application for an order of sale is made by a proper party, disclosing a statutory ground for the sale, and is presented to and recognized by the court or judge. Whatever of error or irregularity may thereafter intervene must be corrected by an appropriate revisory remedy; because of such error or irregularity, the decree cannot be collaterally assailed. The numerous authorities affirming this doctrine need not be referred to; they are known to and read by all the profession. The order of sale was not capable of impeachment upon either of the grounds on which it was assailed.

We must not be understood as assenting to the proposition that notice to the ward, or the appointment of a guardian ad litem for her, was essential to the regularity of the proceeding. The statute makes no such requirement, and for the obvious reason, as we have said, that an adversary proceeding in personam is not contemplated. The application for the sale made by the guardian in her representative capacity, not in any individual right, would seem to be but the application of the ward speaking 619 and acting through her legal representative. Notice to the ward could only inform her of the pendency of her own proceeding, and warn her of a decree, or order sought to meet her necessities or interests: Mohr v. Manierre, 101 U. S. 417: A guardian ad litem could have no duty or office to perform which the law had not devolved on the general guardian. Whenever a guardian ad litem is deemed necessary for the representation of the ward in the court of probate, the statutes provide expressly for his appointment. In the proceeding for the sale of lands under the statute to which we have referred, there is no authority for, or the requirement of, such an appointment. This question the necessities of the case do not require us to decide, and we prefer to rest our conclusions on the settled doctrine, which has so long prevailed in this state, touching the character and validity of sales made under the orders or decreesof the court of probate.

We find no error in the judgment, and it must be affirmed.

PROBATE SALES-COLLATERAL ATTACK.-Proceedings in probate for the sale of a decedent's estate are in rem, and cannot be collaterally attacked: Note to Goodwin v. Sims, 11 Am. St. Rep. 27, 28. See, also, Cobb v. Garner, 105 Ala. 467; ante, p. 000, and note. GUARDIAN AND WARD-SALES - NOTICE-COLLATERAL. ATTACK.-Whether one of two guardians named in a will has authority to institute proceedings for the sale of a ward's property is for the court to determine upon the hearing of the petition, and is not the subject of collateral inquiry: Fitzgibbon v. Lake, 29 Ill. 165; 81 Am. Dec. 302. A decree of sale of an infant's property cannot be col

laterally attacked for mere irregularities in the proceedings where the court has jurisdiction: Hunter v. Hatton, 4 Gill, 115; 45 Am. Dec. 117. GUARDIAN AND WARD-SALES-NOTICE-APPOINTMENT OF GUARDIAN AD LITEM.-Wards need not be made parties to proceedings, nor is a guardian ad litem for them required on an application by a guardian for an order to sell the realty of his ward: Smith v. Race, 27 Ill. 387; 81 Am. Dec. 235, and note; but see Loyd v. Malone, 23 Ill. 43; 74 Am. Dec. 179, and note. The application by a guardian for a license to sell the real estate of his wards for their maintenance and education is a proceeding in rem, and notice to them of such application is not necessary to the jurisdiction of the court to grant the license, though it might be otherwise with an application to sell for the purposes of paying debts: Myers v. McGavock. 39 Neb. 843; 42 Am. St. Rep. 627, and note.