The reading of the application for rehearing would indicate that we did not make clear in the opinion the basis upon which the decision is rested. Reduced to the last analysis, our conclusion rests upon the cited statute placing upon the guardian ad litem as an officer of the court the duty to represent the minor in the proof and probate of the will. This duty we concluded was not perfunctory. The following quotation from an older authority (Andrews v. Hall, 15 Ala. 85) set out in Watters v. First National Bank of Mobile, 233 Ala. 227,171 So. 280, 291, is here appropriate:
"It is an error to suppose that the office of a guardian ad litem is a mere sinecure. It often happens that he should seriously contest the plaintiff's claim."
Indeed, the duties of a guardian ad litem are substantial and extend to any matter which comes to his attention which would defeat the will, if necessary, to protect the ward's interest. It is in this sense, therefore, the guardian ad litem's action is defensive in character, defending the interest of his ward as a part of his duty under appointment of the court. It is simply a matter of the meaning of this statute, a statute which was in no manner involved in Ex parte Winn, supra.
We feel this brief response should suffice, and the second application for rehearing is due to be overruled. It is so ordered.
Application for rehearing overruled.
BROWN, LIVINGSTON, SIMPSON, and STAKELY, JJ., concur.
LAWSON, J., concurs in the result.
FOSTER, J., dissents.