McCLELLAN, J.
Joel Hodges died in February, 1903. He left surviving a widow, the plaintiff-appel*14lant, and four children, all adult at the time of his, death. At his decease he owned and occupied, as a homestead, 80 acres of land, the value of which was less than $2,000. Under and by virtue of the statute (Code 1896, § 2071), the fee to the' entire homestead of 80 acres immediately vested in the widow, and so without judicial action of any kind. Code 1907, § 4198, malees changes in the former statute — Code of 1896, § 2071- — - the effect of which it is not necessary at this time to consider. In June, 1908, the widow filed a petition praying the setting aside of her homestead exemption in the probate court of Jefferson county, alleging the state of facts usually found in such petitions, and averring that the homestead owned and occupied by her husband at his death comprised only 60 acres, describing that area, and that it was of a value not exceeding $2,000. That court proceeded, according to its orderly processes, to formally set aside the 60 acres as the homestead exempt to the widow.
The effect of this proceeding upon the plaintiff’s title to the 20 acres omitted therefrom presents the only question necessary to be considered. It is contended for appellee (and it was so ruled below) that the plaintiff wa.s estopped from prosecuting to1 effect her 'action of ejectment because of the stated averment, and consistent therewith judicial ascertainment of the truth thereof by the probate court that the homestead contained 60 acres, instead of, and as, in fact, 80 acres.
It is clear, as indicated before, that at the time the petition to set aside the homestead was filed the title in fee to the 80 acres was already in the plaintiff. Hence, so far as enhancing her right and title to the entire homestead area, the proceeding in the probate court was wholly vain. That court had nor could have any power to divest the title already so invested by the automatic *15effect of the statute.- — Section 2071. Assuming, for the purpose of present decision only, that the proceeding in the probate court created an estoppel against plaintiff’s assertion of her real title to the twenty acres in controversy, it was equitable at most; and with us, in ejectment, an equitable estoppel cannot avail against the legal title. — Vankirk Land Co. v. Green, 132 Ala. 348" court="Ala." date_filed="1902-02-05" href="https://app.midpage.ai/document/vankirk-land--construction-co-v-green-6519371?utm_source=webapp" opinion_id="6519371">132 Ala. 348, 31 South. 484; Williams v. Armstrong, 130 Ala. 389" court="Ala." date_filed="1900-11-15" href="https://app.midpage.ai/document/williams-v-armstrong-6519097?utm_source=webapp" opinion_id="6519097">130 Ala. 389, 30 South. 553.
On this record the affirmative charge was due the plaintiff. To give it for the defendant was error.
Reversed and remanded.
Dowdell, O. J., and Simpson and Mayfield, JJ., concur.