Under section 2069 of the Code the homestead exempted to the widow or widow and minor children, if any, of a decedent is made to enure to the benefit of the widow or widow and minor children of the decedent during the life of the widow or minority of the children whichever might last terminate, and to vest in them absolutely if the estate is ascertained to be insolvent. This provision is general in terms, but is qualified by section 2071 of-the Code, which provides that “when the homestead set apart to the widow and minor. children, or either, constitutes all the real estate owned by the decedent at the time of his death the title to such homestead vests absolutely in them, whether there be administration on the estate of the decedent or not.” As to whether the decedent Mescepts through whom, the plaintiff claims owned at his death other real estate be*307sides the lot in controversy, the proof is meagre and the inferences from it not clear.
Since the passage of the act of February 28th, 1889, now embodied in part in section 2101 of the Code, occupancy of the homestead is not necessary to the preservation of the homestead right. The forfeiture dealt with in Banks v. Spears, 97 Ala. 560, occurred before the passage of that act, and the decision was placed expressly upon that consideration. There with reference to whether a sale made after that act was adopted would forfeit the homestead right, the court said that “on principle it- would seem that it should not.” In Garland v. Bostick, 118 Ala. 209, it was held that under the statute removal from and renting out of the exempted premises did not work a forfeiture. If the widow may without occupation lease to others, no good reason appears why her entire right may not be disposed of by a sale, and we think the act ivas intended to allow such disposition of the right as might best suit the interest of those for whose benefit the exemption was created.
The statute authorizes proceedings in the probate court for setting apart the homestead, and they may be resorted to with advantage for the purpose of establishing the exempt character of the particular property by record evidence. When, however, the homestead does not exceed in value or area the legal exemption, and there is no selection or setting apart from other lands to be made, as is the case where the decedent owns no other real estate, or where the homestead is of defined limits and is disconnected from other lands, such legal proceedings are not essential to vest or perfect the right of exemption, but it attaches by the force and terms of the statute itself. — Pollak v. McNeil, 100 Ala. 203; Jackson v. Wilson, 117 Ala. 432; Garland v. Bostick, supra.
In the present case, the complaint defines the boundaries of the lot sued for and the proof slows that the lot was occupied as a homestead by Gus Mescepts' at his death, and that its value was $600 or $650. Therefore, the heirship of Willie and Dan Mescepts was not involved in the real issue, which was whether Polly Mes*308cepts was the widow of. the decedent through whom the plaintiffs claim. Charges 15 and 16 requested by the plaintiffs assume that the defendant’s title depended on such heirship and were, therefore, properly refused.
If Willie and Dan Mescepts were not heirs of the decedent, they of course had no 'interest present or future in the lot. If they were the decedent’s legitimate sons, not being minors, they took no homestead right, but that rigid passed alone to Polly Mescepts if she was the widow, and in that case the deed in which she joined was sufficient to pass to defendant the fee which the statute vested in her, if there was no other real estate left, or her life interest if there was other land. In either case the plaintiffs would have no present right to dispossess the widow’s alienee.
The common law mode of marriage is recognized as valid in this State, and to constitute such marriage it is only necessary that there shall exist a mutual consent or agreement between the parties to be husband and wife, followed by cohabitation and living together as husband and wife. If such was. the status of Gus and Polly Mescepts, the law established the relation -of marriage without regard to what the parties considered the legal effect to be. It was, therefore, not essential to the validity of the marriage that Gus Mescepts should have considered Polly to be his wife, as is in effect asserted by plaintiffs’ requested charges 6, 8 and 9; nor was it necessary to the marriage that the agreement should have been in terms “to be husband and wife in the eyes -of the law,” as stated in charge 12.
There was evidence of the facts hypothesized in charge “A” given for the defendant, and while such facts d-o not as a legal conclusion show an agreement of marriage, they were evidence from which the jury might have inferred the existence of such agreement.
Under the principles stated there was no error prejudicial to the plaintiffs in the remaining charges requested for the defendant, or in rulings made on the competency of witnesses to testify on the subject of parentage. The allusion made in the oral charge to the rituals of. ‘some churches concerning marriages was abstract, *309but it Avas not calculated to injure the plaintiffs and there is nothing to show that it had such effect. ■
Judgment affirmed.