This bill was filed previously to the decision of this court in Johnston v. Glascock and wife, [2 Ala. 218.]— *450Before the decision in that case, some uncertainty prevailed as to the necessary allegations in a bill contesting the validity of a will, which’the county court had admitted to probate. In that case, it was held that it was sufficient for the heir at law, or next of kin, to allege the title by which the right to investigate the probate was derived, and the prayer for relief. The bill in this case, though not very technically drawn, contains substantially these requisites, and is therefore sufficient.
The point just cited, has been controverted with great earnestness by the counsel for the plaintiff in error, but after again considering it, we are satisfied it was correct.
It is supposed that a bill of this description, is like any other bill in chancery, and governed by the same rules. To a certain extent, this is doubtless true — -if those claiming under the will, admit its invalidity, it would be unnecessary to proceed further, except to distribute the estate. But if the allegations of the bill are denied, must their correctness be ascertained by the proof of two witnesses? This would certainly defeat the very object the Legislature had in view — a new trial of the validity of the will — it is in effect, a mere offering of the will again for probate, by those claiming under it. and upon them the burden lies, of proving it.— We think it, therefore, clear, that the quantity of proof necessary to be adduced to support the original probate, cannot depend on the answer of those claiming under the contested will. If then the denial in the answer of the allegations of the bill would not affect the proof necessary to be adduced, it goes far to show that such allegations are unnecessary; the whole design of the legislature being to open the probate of wills in certain cases, and to require those claiming under them, again to establish their validity.
It is also urged, that the issue, which in this case was directed to be tried by a jury, was improper; that the jury could not pass on the entire question of the validity of the will, although it might settle or ascertain some disputed fact.
The general question of issues out of chancery, was expounded by this court in Kennedy v. Kennedy, [2 Ala. 571,] in which the right and the duty of a court of chancery to determine questions of fact, is explicitly asserted; and that it should not award an issue to be tried at law, unless the proof was so conflicting as to make it difficult to attain any certain conclusion. The case of *451an heir at law, contesting the validity of a will, has, however, in England, always constituted an exception to this rule. [2 Ala. Rep. 625, and authorities there cited.] The statute, too, under which this proceeding was had, gives the chancellor the power of directing an issue in feet, whenever he thinks proper, and we think it cannot be questioned that devisavil vel non would be an issue in fact, within the meaning of the statute.
The objection that the issue was directed before the testimony in the cause was taken, and even before all the answers were in, is a more serious one. Until the testimony is taken, it cannot be known whether any confl.ct will arise, so as to make it necessary to refer the decision to a jury, and it is premature to direct one previously. [Hoff. C. P. 502.] We do not see that this case forms any exception to the rule. If, however, this were the only error in the record, it might perhaps be cured by the subsequent agreement of the parties.
The omission to serve the process on two of the infant defendants, is a fatal error. The rule of chancery practice, [Clay’s Digest, 612,] requires all subpoenas on resident infant defendants over fourteen years of age, to be executed on them personally, and if under that age, upon those who have the charge of them. These rules were adopted in 1841, many years after these proceedings took place, but they are not materially variant from the law, as it existed previously. [Walker v. Hallett, 1 Ala. Rep. 390.] Here the subpoena was not executed on two of the infants, but as it was executed on their mother, it is insisted that we must presume they were under fourteen years of age. No presumption or intendments can be made against infants. For any thing shown to the contrary, they may have been over fourteen years of age, and indeed it does not appear by the record, that they have had constructive notice by a service of the subpoena on any one having the custody of their persons.
The amendment of the bill by making Nancy Philips a party after verdict upon the issue at law, was an irregularity, but no advantage can be taken of it in this court, as it does not appear to have been objected to in the court below, which will be held to be a waiver. This was so decided in the cases of Batre v. Auze’s heirs, [5 Ala. Rep. 173,] and Erwin v. Ferguson, [ib. 158.]
Let the decree be reversed, and the cause remanded for further proceedings.