Opinion
November 1, 1957.
Appeal from the Circuit Court, Hopkins County, H.F.S. Bailey, J.
Nichols Nichols, Frederick E. Nichols, Madisonville, for appellant.
L.B. Weir, Madisonville, for appellee.
In this appeal we are called upon to resolve two questions: (1) Does an unrecorded chattel-mortgage lien have preference and priority over the preferred claim provided under KRS 396.090 for burial expenses in the settlement of an estate? (2) Does such unrecorded chattel-mortgage lien have preference and priority over the widow's exemption under KRS 391.030?
Both questions must be answered in the affirmative.
The first question is answered quite clearly in Milward v. Shields, 19 Ky.Law Rep. 1076, 43 S.W. 184, 39 L.R.A. 506 and later in International Harvester Co. v. Dyer's Adm'r, 297 Ky. 55, 178 S.W.2d 966.
The second question is just as clearly answered in Blake v. Durrell, 103 Ky. 600, 45 S.W. 883, and also in the International Harvester case.
A distinction is sought to be made because the lien in the present case was not recorded until after the death of the intestate. So far as the record discloses appellant held a valid enforceable lien on the chattel involved at the time of intestate's death although it was unrecorded. This Court in the Blake case, supra, 45 S.W. on page 884, said:
"* * * and the right of the widow to exemptions from distribution and sale is as unavailing against an attachment creditor as it would be against a mortgagee. The attachment lien upon the husband's property can no more be disturbed by his death than it could be by his marriage and establishment as a housekeeper, had he been single at the date of the levy. The status of the lienholder cannot be changed by the death of the debtor. See Milward v. Shields, Ky., 43 S.W. 184, 39 L.R.A. 506." (Emphasis ours)
The lien, therefore, was just as valid and enforceable after death as before, and if the lien constituted a claim that was prior to that of all others at the time of intestate's death it maintained its status of priority after death even though it was still unrecorded.
The judgment must therefore be reversed. It will be noted however that we pass only on the questions of priority. Questions involving validity and enforcibility are not before us. The motion for appeal is sustained, and the judgment is reversed for proceedings not inconsistent with this opinion.