¶1The question presented, is not one addressed to the discretion of the court, but relates to its jurisdiction to grant the order sought. It will *53be seen, by reference to § 2538 of the Code, that §§ 721, etc., are made applicable to Surrogates’ courts, so that the power granted by those sections may be exercised here, but only when the case is brought within their provisions. Doubtless, it was irregular to proceed to prove the will and admit it to probate without having, on the return day of the citation, appointed a special guardian for the minors. The mother, as guardian in socage, by nature, or otherwise, could not, except as general guardian, appear for them ; and she was not then their general guardian; nor could the attorney appear for them. It is true, the failure to appoint a special guardian did not render the proceeding void, but voidable only by the minors on attaining their majority; as is abundantly shown by the cases in Him, cited by the learned counsel. I cannot see that they affect the question here presented.
¶2It is expressly provided by subd. 7 of § 721, that no judgment of a court of record shall be impaired or affected by reason of the appearance, by attorney, of an infant party, if the judgment is in his favor. A decree on probate must be treated as a judgment, within the spirit and meaning of the act. Hence it would appear that, as the decree was against the infants as contestants of the will, it certainly cannot be regarded as being in their favor; and, therefore, to make the order sought would be violating the provisions of the act. Without the statutory power conferred thereby, this court, not being a court of general jurisdiction, would be able to correct but few of the defects and imperfections therein mentioned.
¶3*54This minor, for it is understood that all but one of them are now over twenty-one, will have a right, when of age, to seek to avoid the decree because of the omission to appoint a special guardian. It is an existing right, but cannot yet be exercised. Can this court deprive her of that right, by making the order sought ? Clearly not. No provision of the common-law or of the Code can be found, warranting us to proceed to such an extent.
¶4Application denied.