A. J. WALKER, C. J.
A motion was made in the probate court, by the appellants, to set aside the sale by the appellee, of the lands of their deceased ancestor, under an order of such court, granted on application of appellee as administrator. The motion was preceded by a petition, which was treated as an exhibition of the grounds of the motion; and after a trial, in which evidence was introduced, the court overruled the motion, and refused to grant the petition. The case presents the question, whether the order of the probate court for the sale of the land was void.
[1.] It is the settled doctrine in the decisions of this court, that the proceeding before the probate court, for the sale of the lands of a decedent, is in rem; that the jurisdiction of the court attaches, upon a petition setting forth a statutory ground of sale; and that the order of sale is not void, although the proceedings may abound in errors, if the petition contain the above-stated jurisdictional allegation.—King v. Kent, 29 Ala. 542; Matheson v. Hearin, 29 Ala. 210 ; Field v. Goldsby, 28 Ala. 218. This doctrine is beyond the pale of controversy in this court. The order of sale was, therefore, not void, unless the jurisdictional allegation was wanting; or unless the principle established by this court has been changed by statute, and the invalidity of the decree results from an application of the law as it is made by such change. "We must, then, test the validity of the decree of sale, by making two inquiries, to-wit: 1st, whether a ground of jurisdiction is alleged in the petition; and, 2d, whether there is a statute, which so changes the law, that from its application the invalidity of the order upon some other ground results. These two inquiries we make in the order of their statement.
[2.] The jurisdictional allegation is, that the land could not “be fairly, beneficially, and equitably divided.” This allegation seems to have been designed to be conformable to the act of 1822, which requires an allegation that the land “can not be equally, fairly, and beneficially divided.” Clay’s Digest, 224, § 16. The ground of jurisdiction under section 1867 of the Code, which was the law in force when the application was made in this case, is, that the land “can [40]*40not be equitably divided.” It is obvious that there is not a verbal conformity of the allegation of the administrator’s petition to the section of the Code, under which it was filed. But in King v. Kent, (supra,) it was held that an allegation, of import equivalent to that required by the statute, will sustain the jurisdiction, and that in determining whether the allegation is of equivalent import, the court should select the signification of words favoring the validity of the order. In that case, we remarked, after a most careful consideration of the point, “ that in determining whether the record does disclose the jurisdictional facts, we should construe the language of the record most favorably for the maintenance of the decree, and, where words are susceptible of two or more constructions, adopt that which will sustain the decree.” Whether the same rule of construction would prevail on appeal from an order of sale, we do not now decide; but we have no doubt of the propriety of its adoption in this case, where a motion is made to set aside an order of sale, in the court which rendered it. ’
It is conceivable, that a construction might be placed upon the words, “fairly, beneficially, and equitably divided,” which would render them diverse in effect from the words “equitably divided.” They are, however, susceptible of a construction, which would make each of the three adverbs so nearly the synonym of the others, that, if there be a distinction at all, it is too nice for practical application, and not likely to be observed by those unaccustomed to refinements in defining words. One of the definitions of “fairly” is “equitably,” (Worcester’s Dictionary,) and if we understand “beneficially” to. refer to and qualify the division, as affecting the interest of the respective owners in the land itself, we can not perceive how a division, which would not in itself be beneficial, or (adopting an equivalent positive form of expression) which, tested by its own intrinsic qualities, would be injurious, could be equitable. Upon this reasoning, we decide, that the jurisdictional allegation is, for the purposes of this case, sufficient.
[3.] Has any act of the legislature so changed the law, that the order of sale is void for any reason disclosed by [41]*41the record, notwithstanding the jurisdiction of the court to make the order attached ? The only statute supposed to have such an effect is the act of 7th February, 1854, pp. 55, 56. That act consists of five sections, an analysis of which becomes necessary to a comprehension of the question we are to decide, and of the argument in support of our decision.
The first section amends various sections of the Code, so as to leave it in the discretion of the court to require notice of applications for orders of sale, and of sales, to be given by publishing advertisements in a newspaper, or by posting them up.
The second section declares, that all applications must conform to the requirements of section 1868 of the Code. The requirements of that section are, that the application should accurately describe the land, give the names of the heirs or devisees, and their places of residence, and state which of the heirs are infants, married women, or of unsound mind.
The third section extends the duties imposed upon the judge of probate by sections 1869, 1870, 1871, and 1872 of the Code, to all applications for sale of land. The duties imposed by those four sections upon the probate judge are, to appoint a time, not less than forty days from the application, for hearing it; to appoint a guardian ad litem for infants and persons of unsound mind; to issue a citation to the adult heirs or devisees residing in the State, notifying them of the application, and of the day of hearing, which citation is required to be served ten days before the hearing, and upon husband and wife, where there are married women; to make publication in a newspaper as to nonresidents ; to require proof by depositions, and to file the depositions “of record,” and to confirm the sale when made.
The fourth section requires, that the guardian ad litem should deny in writing the allegations of the petition, “and, if necessary, employ counsel to defend the interest of those he represents,” and that the guardian ad litem should not be the petitioner, or of kin to the petitioner.
The fifth section of the act is in the following words: [42]*42"No order for the sale of land belonging to any estate shall be made, when there are minors, or persons of unsound mind, interested in such estate, unless the probate court shall have taken proof by deposition, as in chancery cases, showing the necessity of such sale; and this proof shall be taken, whether the allegations in the petition are denied or not by the guardian, or other person appointed by the court to represent the minors or persons of unsound mind; and any order of sale, and sale, made mthout a compliance with the requisitions of this act, shall he wholly void."
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A. J. WALKER, C. J.
A motion was made in the probate court, by the appellants, to set aside the sale by the appellee, of the lands of their deceased ancestor, under an order of such court, granted on application of appellee as administrator. The motion was preceded by a petition, which was treated as an exhibition of the grounds of the motion; and after a trial, in which evidence was introduced, the court overruled the motion, and refused to grant the petition. The case presents the question, whether the order of the probate court for the sale of the land was void.
[1.] It is the settled doctrine in the decisions of this court, that the proceeding before the probate court, for the sale of the lands of a decedent, is in rem; that the jurisdiction of the court attaches, upon a petition setting forth a statutory ground of sale; and that the order of sale is not void, although the proceedings may abound in errors, if the petition contain the above-stated jurisdictional allegation.—King v. Kent, 29 Ala. 542; Matheson v. Hearin, 29 Ala. 210 ; Field v. Goldsby, 28 Ala. 218. This doctrine is beyond the pale of controversy in this court. The order of sale was, therefore, not void, unless the jurisdictional allegation was wanting; or unless the principle established by this court has been changed by statute, and the invalidity of the decree results from an application of the law as it is made by such change. "We must, then, test the validity of the decree of sale, by making two inquiries, to-wit: 1st, whether a ground of jurisdiction is alleged in the petition; and, 2d, whether there is a statute, which so changes the law, that from its application the invalidity of the order upon some other ground results. These two inquiries we make in the order of their statement.
[2.] The jurisdictional allegation is, that the land could not “be fairly, beneficially, and equitably divided.” This allegation seems to have been designed to be conformable to the act of 1822, which requires an allegation that the land “can not be equally, fairly, and beneficially divided.” Clay’s Digest, 224, § 16. The ground of jurisdiction under section 1867 of the Code, which was the law in force when the application was made in this case, is, that the land “can [40]*40not be equitably divided.” It is obvious that there is not a verbal conformity of the allegation of the administrator’s petition to the section of the Code, under which it was filed. But in King v. Kent, (supra,) it was held that an allegation, of import equivalent to that required by the statute, will sustain the jurisdiction, and that in determining whether the allegation is of equivalent import, the court should select the signification of words favoring the validity of the order. In that case, we remarked, after a most careful consideration of the point, “ that in determining whether the record does disclose the jurisdictional facts, we should construe the language of the record most favorably for the maintenance of the decree, and, where words are susceptible of two or more constructions, adopt that which will sustain the decree.” Whether the same rule of construction would prevail on appeal from an order of sale, we do not now decide; but we have no doubt of the propriety of its adoption in this case, where a motion is made to set aside an order of sale, in the court which rendered it. ’
It is conceivable, that a construction might be placed upon the words, “fairly, beneficially, and equitably divided,” which would render them diverse in effect from the words “equitably divided.” They are, however, susceptible of a construction, which would make each of the three adverbs so nearly the synonym of the others, that, if there be a distinction at all, it is too nice for practical application, and not likely to be observed by those unaccustomed to refinements in defining words. One of the definitions of “fairly” is “equitably,” (Worcester’s Dictionary,) and if we understand “beneficially” to. refer to and qualify the division, as affecting the interest of the respective owners in the land itself, we can not perceive how a division, which would not in itself be beneficial, or (adopting an equivalent positive form of expression) which, tested by its own intrinsic qualities, would be injurious, could be equitable. Upon this reasoning, we decide, that the jurisdictional allegation is, for the purposes of this case, sufficient.
[3.] Has any act of the legislature so changed the law, that the order of sale is void for any reason disclosed by [41]*41the record, notwithstanding the jurisdiction of the court to make the order attached ? The only statute supposed to have such an effect is the act of 7th February, 1854, pp. 55, 56. That act consists of five sections, an analysis of which becomes necessary to a comprehension of the question we are to decide, and of the argument in support of our decision.
The first section amends various sections of the Code, so as to leave it in the discretion of the court to require notice of applications for orders of sale, and of sales, to be given by publishing advertisements in a newspaper, or by posting them up.
The second section declares, that all applications must conform to the requirements of section 1868 of the Code. The requirements of that section are, that the application should accurately describe the land, give the names of the heirs or devisees, and their places of residence, and state which of the heirs are infants, married women, or of unsound mind.
The third section extends the duties imposed upon the judge of probate by sections 1869, 1870, 1871, and 1872 of the Code, to all applications for sale of land. The duties imposed by those four sections upon the probate judge are, to appoint a time, not less than forty days from the application, for hearing it; to appoint a guardian ad litem for infants and persons of unsound mind; to issue a citation to the adult heirs or devisees residing in the State, notifying them of the application, and of the day of hearing, which citation is required to be served ten days before the hearing, and upon husband and wife, where there are married women; to make publication in a newspaper as to nonresidents ; to require proof by depositions, and to file the depositions “of record,” and to confirm the sale when made.
The fourth section requires, that the guardian ad litem should deny in writing the allegations of the petition, “and, if necessary, employ counsel to defend the interest of those he represents,” and that the guardian ad litem should not be the petitioner, or of kin to the petitioner.
The fifth section of the act is in the following words: [42]*42"No order for the sale of land belonging to any estate shall be made, when there are minors, or persons of unsound mind, interested in such estate, unless the probate court shall have taken proof by deposition, as in chancery cases, showing the necessity of such sale; and this proof shall be taken, whether the allegations in the petition are denied or not by the guardian, or other person appointed by the court to represent the minors or persons of unsound mind; and any order of sale, and sale, made mthout a compliance with the requisitions of this act, shall he wholly void."
It is argued for the appellants, that under the last clause of the fifth section of the statute, every order of sale, and sale, made without a compliance with each of the several requisitions of the five sections above noticed, is wholly void. We can not assent to such a proposition. The maintenance of it would lead to consequences alike absurd and injurious. It would make a strict compliance with a large number of statutory requisitions the unyielding standard of the validity of all orders of sale. Some of those requisitions pertain to matters not evidenced by the record. Bor example, a decree of sale would be void, if the guardian ad litem was of kin to the administrator, or if there was an inaccuracy in the list or description of the heirs, or their residences, or if the directions as to the mode and time of giving notices were not strictly observed. One desiring to purchase at the sale would be unable to ascertain, by an examination of the record and papers, whether the title would be valid. After making the most careful inquiry, and finding no defect in the proceedings, and therefore venturing on a purchase, his title might be defeated by evidence that there was some heir whose name was overlooked or forgotten by the administrator, or not known by him, and therefore not inserted in his petition. In like manner, his title might be defeated by a mistake as to the residence of any one or more of the heirs. Many other equally forcible illustrations of the unavoidable and irremediable uncertainty of such sales might be given. When it is considered that the probate j'udges do not generally belong to the profession of the law, and are not chosen generally for their legal attainments, it is not difficult to¡perceive that, if the [43]*43proposition asserted by the counsel should be maintained, a valid sale of land under the order of the probate court, since the date of the act of 1854, would be an exception to a general rule. Not merely the tendency, but the inevitable effect of such a decision, would be to destroy confidence in such sales, and cause great injury to heirs by sales at greatly depreciated prices, when an exceptional case of a compliance with the numerous requisitions of the statute occurs. The legislature will be held to have absurdly subverted its own purpose of benefiting estates, by affording a safe, cheap, and expeditious mode of accomplishing the sales required in the process of administration, with the strictest care for the interest of the persons interested, and to have adopted a plan which would, lead to the sacrifice of estates. The courts of the country would be filled with suits, in which the validity of sales will be contested upon the question of a compliance with all the minute details of the machinery by which the sale was reached.
The absurd and ruinous consequences of a statute which is plain, afford no justification for setting it aside by the courts.—Smith on Statutory and Constitutional Construction, 627, § 478; Sedgwick on S. & C. Law, 211-213. But, if there is uncertainty and obscurity in the law, such consideration may be taken into view, as a help to the ascertainment of the legislative intention, and one clause may be compared with another.—Smith on S. & C. Construction, 631, §§ 484-489, 648, § 503; Sedgwick on S. & C. Law, pp. 296-305, 311. If it were clear that the legislature had prescribed that the validity ot the order of sale should depend upon a strict compliance with all the requirements of the five sections of the statute, we certainly should have no election, and, however injurious we might deem the law, it would be our duty to execute it. The legislature has not clearly so prescribed.
The declaration in the last clause of the fifth section, that all orders of sale, and sales, made without a compliance with the requisitions “of this act,” shall be wholly void, is a part of the same sentence with the direction as to the mode of taking proof when minors or persons of unsound minrl are parties, and is separable from it only by a comma or [44]*44semi-colon, and connected witb it by tbe copulative conjunction “and.” The collocation of tbe two members of tbe sentence, and tbeir grammatical connection, strongly tend to show, as will be suggested to any person reading tbe sentence through, tbat by “tbe requisitions of tbis act’" is meant tbe requisitions of tbis section. Tbe fifth section of tbe statute is in itself a complete announcement of tbe legislative will, having no connection witb, or dependence upon tbe four preceding sections. It is of itself within the-definition of an act, and may be correctly denominated an' act; and if tbe fifth section should be called an act, tbe Word would be correctly used. It is true tbat tbe word act is generally used to designate tbe entire bill witb all tbe parts, adopted by a single effort of tbe legislative will. Nevertheless, in another, and perhaps more correct sense of tbe word, tbe distinct and complete and independent legislative command contained in tbe fifth section may be denominated an act. There is, therefore, no violence to the meaning of tbe word by referring it to tbe section, as tbe context indicates was intended by tbe legislature. "We should, however, perhaps still feel bound to refer tbe word act to all tbe sections, if tbe intention to restrict its application was not otherwise and for additional reasons apparent.
Tbe fifth section is limited to cases in which infants and persons of unsound mind are interested. Those parties are incapable of protecting themselves, and therefore tbe legislature seems, ex industria, to have guarded tbeir rights. For tbis purpose purely the fifth section seems to have been framed. It provides, tbat when such persons are interested, tbe proof must be taken as in chancery cases, showing tbe necessity of tbe sale, whether tbe allegations are denied or not. We think tbat tbe latter clause of tbe section sprung from tbe same strong desire of tbe legislature to protect those persons incapable of protecting themselves, by making the omission of tbe cautionary step in tbeir favor a reason for tbe unqualified invalidity of tbe decree, and of tbe sale made in pursuance of it.
Tbe tbbd section of tbe act, by incorporating section 1872 of tbe Code, requires tbat tbe facts stated in tbe ap[45]*45plications should be proved by the depositions of disinterested witnesses. The fifth section requires proof in the same mode of the allegation of the necessity of the sale, in cases where infants and persons of unsound mind are parties. After making the requisition of proof by depositions of all the allegations in all cases, the statute repeats it as to a particular allegation in reference to a particular class of cases. Why was this done ? Is it simply a vain repetition ? Has the direction as to taking proof in the fifth section no effect ? If a non-compliance with the requirement of the third section renders the order of sale wholly void, then the repetition of the requirement as to a particular allegation in a particular class of cases is altogether supererogatory and useless. But if, on the other hand, the word act in the fifth section refers only to the enactment contained in that section, we have an operation for the mandate of the fifth section as to the mode of taking proof of the necessity of sale in a particular class of cases. Parties incapable of protecting themselves are selected as the special subjects of legislative protection, and, as to the jurisdictional allegation, a mode of proof calculated to shield them from imposition, common to all other cases, is enforced by an unbending rule, that its neglect shall utterly vitiate the order, and the sale made in pursuance of it. Upon no other theory has the first clause of the fifth section any office to perform.
The fourth section of the statute requires, that the guardian ad litem should deny in writing the allegations of the petition. The fifth section requires, that proof of the necessity of the sale should be taken by deposition, whether the denial by the guardian ad litem is made or not. Now, if the word act in the fifth section embraces all the antecedent sections, and if, therefore, a non-compliance with any one of the requisitions of the antecedent sections renders the order of sale absolutely void, it would be void on account of the failure of the guardian ad litem to deny all the allegations of the petition. The order being void in the absence of the denial, what reason could there be in requiring in the fifth section that proof should be taken of a particular allegation, notwithstanding there was no denial ? If [46]*46the order was void in the absence of the denial, what office is performed by the statutory mandate in the fifth section, that the proof should be taken in the prescribed manner, whether there was a denial or not, and in default thereof, that the order should be void ? According to the argument which we combat, the legislature says, if there is no denial the order is void in all cases; and it immediately proceeds to say, if there is no denial, and if in addition thereto the proof of a particular allegation is not taken in the prescribed mode, the order in a particular class of cases is void. It is thus obvious that, upon the construction we are contesting, the direction of the fifth section, that the proof should be taken of a particular allegation in a specified class of cases, whether the prescribed answer was filed or not, under penalty of absolute invalidity, is supererogatory and useless. Upon the supposition that only a non-compliance with the fifth section renders the order void, an office for the direction is found. The legislature must be supposed to have' known, that under the decisions of this court the mere omission of the guardian ad litem to answer would only render the order voidable; and it therefore separates the cases of infants and persons of unsound mind, and as to them makes a special provision, that although the guardian ad litem may neglect his duty, and fail to controvert the allegations by a written denial, the proof of the material .allegation of the important fact of the necessity of the sale must be made by depositions. To this protection for persons not sui juris it was deemed necessary to give the guaranty, that the order should in its absence be wholly void.
It is the duty of courts to strive to give a reasonable operation to every part of the law, and never to attribute, if possible, to the legislature the doing of a vain and useless thing.—Smith on S. & C. Construction, 671, § 627. We consult this cardinal and wise rule of interpretation by holding, that “ the requisitions of this act,” a non-compliance with which makes void the order of sale, mean the requisitions of the fifth section.
In this case, the requisite jurisdictional fact was alleged, and it was proved by depositions taken as in chancery cases; [47]*47and although there a?re defects in the proceeding, including a failure to correctly state the names of the heirs, the order of sale is not void.
An argument against the conclusion attained by us, and above expressed, has been drawn from the peculiar phraseology of the second section of the act of 7th February, 1854. That section declares, “that no application for the sale, for any purpose, of the lands of deceased persons, shall he acted upon by any judge of probate, unless such application shall conform to the requirements of section 1868 of the Code.” We attach no importance to the prohibitory character of phraseology which is adopted. Unquestionably, in every statute prescribing the duties of the probate judge, a prohibition of inconsistent action by him is implied. The prohibition is quite as clear, though perhaps less emphatic, in a statute which positively prescribes that the court shall act upon an application of specified character, as in a statute which prohibits action without such application. The peculiar phraseology of the second section above noticed, therefore, makes no change in the question of what gives the court jurisdiction. There is no change in the statute which affects the decisions of this court as to what is requisite to sustain the jurisdiction of the probate court to order the sale of lands of decedents. Those decisions are eminently rules of property, and ought not now to be disturbed. The purpose of the adoption of the second section above copied was not to change the law on the subject of jurisdiction. There was, before the adoption of that section, a difference in the prescribed allegations of a petition for the sale of land under sections 1754, 1755 and 1756, from those of a petition under section 1868. The latter required statements of an important character which the former did not. The object of the second section was to make the requirement of those statements applicable to proceedings for the sale of land under the other sections.
The peculiar phraseology of section two of the act of 7th February, 1854, is pressed with so much persistency upon us, as showing that the legislature intended to make the pursuit of its command essential to its jurisdiction, that we [48]*48are induced to present in parallel column with it a provision of the act of 1822.
Second section of act of 1854: “ No application for the sale for any purpose, of the lands of deceased persons, shall be acted upon by any judge of probate, unless such application shall conform to the requirements of section 1868 of the Code.”
Fourth section of the act of 1822: “Said court shall not decree or order sale of the real estate described in such petition, unless satisfied by proof, to be taken by deposition as in chancery cases, and filed in the cause.” — Olay’s Digest, 225.
It is impossible to find anything in the left-hand column, tending more clearly to prescribe a condition precedent to the exercise of jurisdiction, than is found in the right-hand column. Yet it is well settled, that jurisdiction did not depend upon a compliance with the extract from the act of 1822, and has been so settled since the decision in Wyman v. Campbell, (6 Porter,) made nearly thirty years ago. It is, therefore, utterly impossible for us to hold that the language used in the second section of the act of 1854 varies the question of jurisdiction.
The proceeding in the probate court for the sale of decedents’ lands is held, by a long chain of decisions not now to be questioned, to be in rem; and therefore the validity of the orders can never depend upon the fact that the court has acquired jurisdiction of the persons of the parties. The requisition of notice is just as plainly and as positively made in the act of 1822 as under any subsequent law. Clay’s Digest, 224, § 17. Under the act of 1822, the order of sale was not void on account of the want of notice. It was so settled by the decisions of this court. ~We can not decide to the contrary, unless we disregard the doctrine of stare decisis, and overturn decisions which constitute a rule of property, under which millions of dollars worth of land are probably held. No person who will examine the act of 1822 can say that there is a reason for regarding the proceeding to sell land under the present law as in personam, which did not apply to the old law, under which, as every intelligent lawyer knows, the proceeding was regarded as in rem.
Note by the Reporter. — After the delivery of the original opinion in this case, the appellants’ counsel made an application for a re-hearing. The application was overruled, but the opinion of the court was modified in some particulars, though the opinion now on file does not show what changes were made. On the application for a re-hearing, the following dissenting opinion was filed by Byrd, J.
We have examined the opinion and record in Johnson v. Pynes, decided at the June term, 1866, and we think the decision in that case can be sustained without disturbing any principle settled in this opinion.
In this case we have waived a critical examination of the bill of exceptions, but we do not decide that it is so framed as to present for revision the questions adjudged.
Affirmed.
In the case of Grace v. Kirldand, the decree of the probate court is affirmed, on the authority of this case.
BYRD, J.
I yielded my assent to the original opinion of the court with reluctance; and now, on the application for a re-hearing, I desire to say, that my difficulty consists in restricting the clause of the fifth section of the act approved February 7, 1854, (Pamph. Acts, p. 55,) which reads as follows — “ and any order of sale, and sale, made without a compliance with the requisitions of this act, shall be wholly void,” — to that section. The title of the act is, “An act to regulate the sale of real and personal property by executors and administrators,” and it seems to me that the sensible and legitimate interpretation of the words “ this act,” used in the clause recited, is to refer them to the word “act” in the title, and not to the fifth section of “this act.” Again, if they only refer to that section, then the words, in the clause recited, “and sale made,” would be unmeaning; for if, under that section, the “order of sale” was “wholly void,” then no sale under it would be valid, nor would it confer any title on the purchaser. But I find an office for the words “and sale made,” by looking back to the first section of the act; for, although the “order of sale” might [50]*50b© valid, and free from all objection, yet the legislature intended to declare the sale should be “wholly void,” unless the executor or administrator gave the notice for the time and as required by the provisions of the first section of the act.
It is admitted that, to give the clause recited a literal construction, would present some apparent absurdities and hardships. But for these, the legislative, and not the judicial department; would be responsible : ita lex scripta est. Besides, as to any real absurdities arising from such a construction, there are well-recognized principles of construction, which would dispose of them, but which I shall not attempt to solve in this case, as my brethren are confident of the correctness of their opinion, and I see no good to arise from a further consideration of the subject on my part. The decisions of the court before the passage of the law, was, no doubt, the cause of its enactment.
I content myself with the expression of the foregoing views, and with the further remark that, although I am in favor of a rehearing of the cause, yet, deferring to the opinion of my brethren, I yield to their opinion my judicial acquiescence.