Rhett et al. v. Mastin, Trustee. that there was any actual proof of the minority of these parties, (who were alleged in the bill to be infants,) and for that reason, if for no other, the judgment, upon the authority of that case, must be reversed," citing Walker v. Hallett, 1 Ala. 379; and this language was used in reference to a decretal order appointing a guardian ad litem. Irregularity in the appointment of a guardian ad litem, may be assigned as error, and will work a reversal.-Bondurant v. Sibley, 37 Ala. 565; Clark v. Gilmer, 28 Ala. 265; Walker v. Hallett, 1 Ala. 379; Erwin v. Ferguson, 5 Ala. 158. 2. The record of a decree in chancery must affirmatively disclose the evidence necessary to sustain it. Of the allegations of the bill, of the facts essential to the relief sought and decreed, this record discloses no evidence, except the answer of the adult defendant and of the guardian ad litem. Thus the question is presented: Is the admission of the guardian ad litem evidence against the infant? Can he, by his answer, prejudice the infant? And let it be remembered this is the answer of a guardian ad litem irregularly appointed, in a suit hastily pressed to a final decree. It has never been supposed, in our practice, so far as our experience extends, that a decree against an infant could be predicated on the admissions in the answer of a guardian ad litem. Such an answer has been generally deemed mere pleading, not serving any of the purposes of evidence.-1 Daniel Ch. Pr., top page, 218, mar. page, 214; James v. Jones, 4 Paige, 115; Bulkley v. Van Wyck, 5 Paige, 586. The answer of the adult defendant, though the mother of the infants and the tenant for life of the trust estate, was not evidence against them.-Julian v. Reynolds, 8 Ala. 683; 2 Daniel Ch. Pr. 1017, top page. 3. The master's report of the trustee's account is clearly erroneous on its face. The trustee's receipts are reported to be $33,723 53. Of this sum $22,590 24, was received from the estate of John P. Barnard, and for collecting it an attorney's fee of ten per cent. was charged; to the trustee, commissions of $6,500, near one-fifth of his entire receipts, were allowed. The master reports the testimony on which this allowance was based; the witnesses, whose Rhett et al. v. Mastin, Trustee. testimony is thus reported, state that $6,500 would be reasonable compensation. They do not state the character and extent of the services rendered by the trustee; they do not state that they have any knowledge of the services; they express an opinion, which may be very conclusive and satisfactory to them, but which is not evidence before a court, and cannot be made the basis of a judgment by a judicial tribunal, and might, or might not, command a little more respect from others, if the facts on which it was founded had been stated. Evidence of this character, but stronger, was ruled by this court inadmissible to fix the compensation of a trustee.-Gould v. Hays, 25 Ala. 426. 4. A large portion of the trust fund was directed to be invested in the purchase lands in Mississippi, without any evidence to authorize the investment. Surely this court will not sanction, in the absence of all evidence to support it, a decree thus changing the character of an infant's estate, and transferring it from the State, beyond the jurisdiction of the court. BEIRNE & GORDON, for appellee.-The first point raised by appellant's brief is, that a guardian ad litem was appointed for infant defendants without affidavit of the fact of infancy. It has been repeatedly decided by this court that a formal objection, which, if raised before the chancellor, might have been remedied by amendment, is not available on error.-Johnson v. Culbreath, 19 Ala. 348; Walker v. Smith, 28 Ala. 569; Holston v. Holston, 23 Ala. 777. An objection very similar to this was raised and overruled in the case of Gannard v. Eslava, 20 Ala. 732. In that case it was objected that certain infants were not properly before the court, because of non-compliance with the rules as to service; and that, too, when they were nonresidents. The supreme court say, (page 470): “This objection cannot be urged for the first time in this court." They answered by guardians ad litem, regularly appointed, and it sufficiently appears that their interests were protected; quoting, also, 7 Ala. 823, and 12 Ala. 265. Again, in Preston v. Dunn, 25 Ala. 507, this court decided Rhett et al. v. Mastin, Trustee. the chancery court was the general guardian of all infants, and that, therefore, the chancellor appointing a guardian ad litem, even without notice to the infant, would merely perpetrate an irregularity, from which no error could be assigned, unless injury should be shown; and this court favorably reviews the case of Preston v. Dunn, in the latter case of Friarson v. Travis, 39 Ala. 150. Now, the record in this case discloses the fact that service was regularly effected upon the infants, according to the rules; that the bill, which was filed by their trustee appointed by this court, alleged the fact of their infancy; that the mother of the infants, in her answer, admitted the fact of their infancy; that the guardian ad litem, after filing his written consent, admitted the fact of their infancy; and that the record upon its face establishes the fact. The reason of rule 23, chancery practice, was to simplify, not to complicate, proof of infancy. "No testimony shall be required of infancy;" whereas, heretofore, it was required. "An affidavit is sufficient," even that of complainant, showing that the sole object of the rule was to satisfy, in any way, the mind of the chancellor of the fact of infancy. And such must have been the case in this proceeding, inasmuch as all presumptions are in favor of the legality of of the judicial acts, and the chancellor, by his action, showed that the fact of infancy had been established. 2. As to the other points made by appellant's brief, this court has established, and inflexibly adhered to the rule that, "where no exception was made to the report of the register, and no objection raised to the confirmation of that report in the court below, none will be heard for the first time in the supreme court, the report not being erroneous on its face."- Gerald, Adm'r, v. Miller, 21 Ala. 433; 9 Porter 80; 9 Ala. 180. The record in this case shows that no exception was taken, nor objection raised in the court below. PETERS, J.-The facts of this case, so far as they are necessary to determine it in its present shape, are the following: On the 14th day of May, 1867, Mastin, the appel Rhett et al. v. Mastin, Trustee. lee in this court and complainant in the court below, filed his bill in the chancery court of Madison county, then designated the 29th chancery district of the northern chancery division of Alabama. The bill was filed by Mastin "as the trustee of the separate estate of Harriet Barnard, which was created by the will of David Moore, deceased, late of Madison county," as complainant, against said Harriet Barnard, and her minor children, Martha P. Barnard and Catherine M. Barnard. No other persons are made parties to the bill. The bill alleges, among other things, that said Harriet Barnard was the daughter of said David Moore, deceased, and the widow of John P. Barnard, deceased; that Moore, the father of Mrs. Barnard, departed this life in Madison county, in this State, in 1845, having made his will before his death, in which he directed that his estate, after payment of his debts, the portion of his wife's and some special legacies, should be distributed among his children, by "division to be made in equal portions. and of equal value, as near as may be each one's share." This will bears date March 12, 1845; Stephen S. Ewing, George P. Beirne and William J. Mastin were appointed executors. On the 8th day of April, 1845, Mr. Moore added a codicil to his said will, in which he directed that the property which is intended for his daughters, “shall rest in and be held by " his executors, or the survivor, "in trust for the sole and separate use and benefit" of his "said daughters respectively," and on the death of any of my said daughter or daughters leaving children, the share of such daughter to be equally divided among her children." And he appointed George P. Beirne and William J. Mastin guardians of his "children;" an office which it does not appear they accepted. The will of Mr. Moore, and the codicil to the same, were proven after his death, and admitted to record in the orphans' court of the county of Madison, on the 6th day of October, 1845. Mr. Moore left at his death a very considerable estate, to be divided among his children. Mrs. Harriet Barnard's share was allotted to her, and came into the possession of her husband, John P. Barnard, as the trustee of her separate estate. He held and managed it as such until his death, Rhett et al. v. Mastin, Trustee. on the 9th day of April, 1860; after which, on the 31st day of May, 1861, the complainant in the court below, said Mastin, was appointed by the Register of the chancery court of Madison county, trustee in the place of the said John P. Barnard, deceased, and thereupon he gave bond and qualified as such, and took charge of said trust estate; that said Harriet Barnard was of the age of twenty-one years and upwards, and her said children, Martha and Catherine, were minors under fourteen years of age, living with their mother, said Harriet Barnard, and all residing in Madison county, in this State. The prayer of the bill, among other things not necessary to be set out in this opinion, asks "that an account be taken and stated of the action of complainant as trustee, and in said account he be allowed the fees and charges which the necessities of the estate have required him to expend;" also for authority to purchase with the trust funds, from Mrs. Barnard, a tract of land lying in Noxubee county, in the State of Misissippi, estimated to be worth $12,548; and for general relief. The facts alleged in the bill are not verified by any affidavit or oath. It is an unsworn bill. And "each defendant is required to answer, without oath, all the paragraphs" thereof. Summons requiring the defandants "to appear and plead or answer," in the usual form, were issued on the 14th day of May, 1867, and returned "executed by leaving a copy with Harriet Barnard," on the 20th day of May, 1867, and on the same day the summons was served, Samuel H. Moore consented, in writing, to act as the guardian ad litem of the minor defendants, Martha and Catherine Barnard; and, thereupon, on motion of complainant's solicictors, he was appointed by the register guardian ad litem for said infant defendants. It does not appear from the record that any affidavit of the facts of infancy, and ages of minor defendants, or any other proof of these facts, was offered or made, to authorize such appointment. If this was done it is wholly omitted from the record. On the 3d June, 1867, Samuel H. Moore, the guardian ad litem of the infant defendants, filed his answer to the bill for them. This answer admits the facts alleged in the bill, and states that "this defendant cannot interpose any objection |