Under the statutes -as they have existed since the passage of the act of February 28th, 1889, relating to exemption's in favor of the widow and children of a deceased debtor (Code, § 2100), occupancy of the homestead has not been requisite to presence the right of exemption. In Banks v. Speers, 97 Ala. 560, the court, in referring to, but without deciding, the question as to whether under that statute a *588sale and abandonment of the possession would work a forfeiture of the homestead right, said: “On principle it would seem that it should not.” In Garland v. Bostick, 118 Ala. 209, that statute was referred, to as a reason for the decision -made that a leasing did not constitute an abandonment.
The act provided against a forfeiture by removal in the case of “the widow and minor children or child of any deceased husband or father who have had set aside to them or to the 'widow or minor children or child a homestead,” etc. The strict construction contended for by appellee would confine the operation of the act to cases where the homestead had been set aside by valid proceedings had in the court, but such was not the case in either of the decisions we have referred to nor do we think the statute was so intended. Where there must be a selection of lands in order to fix the identity of the exempt property, necessarily the allotment must have been made through the court before either occupancy of a defined part or an abandonment of such part could occur; hut where the homestead sought to be retained is that actually occupied by the decedent at the time of his death, and is separate and apart from other lands -of the estate and is within the statutory limit as to area and value, the law itself attaches 'to it the character of exempt property having fixed limits, so that no intervention of a court is needed to establish its status as such. — Garland v. Bostick, supra; Jackson v. Wilson, 117 Ala. 432. For a homestead so situated there is no reason 'why the legislature should have designed a different rule-in respect of forfeiture by abandonment than that which applies when the setting aside is ordered by a court.
In case the decedent left no real estate in excess of that exempt by law from the payment of debts, the per-' sons for whose benefit the exemption is created may, under the provision first contained in the act of December 13th, .1892, now in sections 2071 and 2100 of the Code, become invested with the full legal title so far a-s it resided in the decedent by procuring an order of the probate court declaring the property exempt. See *589Brooks v. Johns, 119 Ala. 412. But such proceeding is in no way essential to the establishment or maintenance of the mere right of exemption which shields the homestead from the decedent’s debts. That right exists independent of the provision made for the ultimate disposition of title.
Mrs. Newell 'should have been allowed to defend upon the facts set up in her answer, showing that the lands described in the administrator’s petition constituted the separate homestead of the decedent and were exempt from his debts.
Rhodes and Fadley, as transferees of the decedent’s heir's as well as by reason of their contract with his widow, were persons interested in his estate, and as such entitled to defend under section 158 of the Code. Bank v. Speers, 114 Ala. 323.
The court erred in granting the motion to strike out parts of the answer of Mrs. Newell, and also in granting the motion to strike out the answers of Bhodes and Fadley.
It is not probable thqt other questions raised by the assignments of error will arise on another trial. Let the decree be reversed and the cause remanded.
Beversed and remanded.