concurring:
The utterances of this court have not been, perhaps, uniform and harmonious on the subject of service of process in proceedings instituted under the probate law, as administered under the Code of 1857 in the Pro'bate Court, and under the present Constitution in the Chancery Court.
The confusion lias arisen mainly from a failure to observe the different mode by which the court,' in probate proceedings, obtains jurisdiction over minors, from that required in the ordinary chancery suit for equitable relief.
Our statutes present the anomaly that the Chancery Court obtains cognizance over an infant and its property, in one class of suits, without personal service on the infant, and in another class of suits it cannot proceed to a decree affecting the infant without service, or constructive service. This grows out of the subjects of its jurisdiction. It has, under the present Constitution, the same jurisdiction that belonged to the Probate and Chancery Court under the Constitution of 1832, and exerts what (for convenience) we call its probate jurisdiction according to the formula of procedure prescribed by the statutes.
The difference was noticed in Winston v. McLendon, 43 Miss. 257, which was an appeal from the decree of the Probate Court to sell lands of the intestate to pay the debts. The decree was reversed because the coui’t had appointed a guardian ad litem, when the record showed that the minor had a *103regular legal guardian. It was pointed out bj reference to the Code of 1857, art. 98, that the guardian must be served, and defend for his ward. The case of Mullen v. Sparks, 43 Miss. 129, decided at the same term, was cited as an equity suit, and there the service was as in the Chancery Court law.
In Mills v. Smith, 44 Miss. 302, 303, it was shown in the petition that the minor had no guardian, and it was said by the court, citing art. 42, p. 31, Code of 1857, that the very case intended by the statute had occurred, for the appointment of a guardian ad litem. The decree was affirmed without a hint that the father or mother, as provided in the Chancery Court law, ought to have been summoned. It is true that publication had been made for the infant as a non-resident, but that was not relied upon by the court as an essential matter.
In Saxon v. Ames, 47 Miss. 566, which was a proceeding under the statute for a sale, if partition of the land could not be made; the reasoning was, that in that special proceeding, as well as in proceedings to sell lands when the personal estate is partially or totally insolvent, under sects. 98, 99, pp. 448, 449, Code- of 1857, the entire method was regulated by the Probate Court statutes. The point adjudged was, that inasmuch as the guardian of the minor appeared and represented the ward, the requirement of art. 117, Code of 1857, was complied with, and the minor was bound by the decree. The court said : “ The distinction is as to who are proper defendants, and as to the notice to them, where infants are concerned, between a court of equity and the Chancery Court exerting its probate jurisdiction. The cases of Ingersoll v. Ingersoll, 42 Miss. 155, and Price v. Crone, 44 Miss. 557, illustrate how the infant must be brought in as defendant in the ordinary equity suit. Wells v. Smith, 44 Miss. 296, and McLendon v. Winston, 43 Miss. 254, are instances of the latter. * ' * * In the former, the infant must be personally served, and the-father, mother, etc. Under .the Probate Court law it suffices generally to serve the guardian., ’ And it was held that no process or summons was .required for the *104minor, and would be wholly unnecessary ; and further, that if the regular guardian voluntarily appears and makes defence, the decree will be obligatory.
In the late case of Erwin v. Carson, 54 Miss. 282, an ordinary suit in equity, — it was held that it must appear in the record that there was no father, mother, or guardian in this State; otherwise, jurisdiction was not obtained over the minor. Courts of equity always required subpoenas to be served on infant defendants. The service prescribed by the Chancery Court law, on father, mother, etc., is super-added.
The authoi'ities which I have cited announce emphatically that the acquisition of jurisdiction in probate proceedings, over a minor and his property, is regulated by the special statutes applicable to them, and not by statutes referring to process and service on infant defendants to a suit in equity. The regularly appointed guardian is the representative of the ward in probate proceedings, and in no state of case is the minor directed to be personally served. By art. 104, p. 451, Code 1857, on final settlement by an executor or administrator, summons shall be served on the guardian of an infant legatee or distributee; and if there be no guardian, the court shall appoint a guardian ad litem.
So, under ar-t. 151, p. 468, Code of 1857, where the guardian applies to sell land of his ward, notice must be given to co-heirs and three of the nearest relatives of the ward, if there be any in this State. ■
In neither of these cases, nor any other in the probate law, is there direction to summon the minor. But in every case the appearance and defence must be by the regular guardian, or the special guardian quo ad hoc.
Publication may be made to a non-resident guardian. That, I suppose, applies to a guardian who has been appointed in this State, and who is amenable to its courts as such. Such non-resident guardians are expressly contemplated and provided for by arts. 160 and 161, p. 466.
*105If there be no guardian, resident or non-resident, then the court shall appoint a special guardian pro hoc vice, who shall defend for the infant; and such defence, for all the purposes of that proceeding,,is as conclusive on the infant as if made by a regularly appointed legal guardian.
The statute esteems this temporary guardian, with duties limited to the particular suit, as a full and complete representative of the rights and interests of the minor. He stands before the court clothed with authority by the law, as full and perfect for that suit as the general guardian is for all the duties incident to his office. He supplies the incapacity of his temporary ward, and does for him what he could not do for himself.
It was as competent for the Legislature to provide for a special guardian in certain circumstances, to represent the infant, as for the general guardian in all others. The necessity for either rests upon the legal incapacity of the minor ; and it was within legislative discretion to indicate some fit person who shall stand before the court as the representative and defender of the infant’s rights.
Perhaps there are cases in this court where attention was not'directed to the subject here discussed, and the judgment might be in conflict with the conclusions reached in this case. In Miller v. Palmer, 55 Miss. 323, it seemed to be conceded by counsel that the probate sale was void, and the opinion of the court assumes that as conceded.