Wolff v. Perkins

51 Ark. 43

• Court: Supreme Court of Arkansas
• Decided: May 15, 1888
• Status: Published

Opinion

COCKRILL, C. J.

The title to an intestate’s estate when less than three hundred dollars vests in the widow by virtue of the statute. Hampton v. Physick, 24 Ark., 561; Wood v. West, 38 Ib., 243. She succeeds to such interest a» her deceased husband had at his death — no more. Her condition is no better than that of the administrator or the heir when there is no widow, and her title is not superior to that which vests in the widow by the assignment of dower. An unrecorded mortgage, executed by the intestate, remains a valid lien after his death as against the administrator or the heir, (Martin v. Ogden, 41 Ark., 186) and as to personal property takes precedence of the widow’s dower. McClure v. Owens, 32 Ark., 443. It follows that an unrecorded mortgage of chattels may be enforced against property, the legal title of which has vested in the widow by virtue of the statute which confers upon her the right to her deceased husband’s estate when less than $300 in value.

It was error, therefore, to sustain the demurrer to the complaint.

It is not necessary to determine whether the mortgage was intended to cover all of the indebtedness claimed to be due, or whether the payments made by the mortgagor operated to extinguish the mortgage debt. It is sufficient for the purpose of this appeal that the complaint alleges that the debt secured by the mortgage is due and unpaid and that the demurrer admits that to be true.

Reverse the judgment and remand the cause with instructions to overrule the demurrer.