I concur in the result. Plaintiffs' claim is neither a lien nor a charge on the homestead. It is a mere debt, which *Page 156 can become a lien only by the recovery and docketing of a judgment or by attachment. We so held in In re Estate of Peterson, 198 Minn. 45, 268 N.W. 707, where we construed the new probate code, L. 1935, c. 72, 3 Mason Minn. St. 1940 Supp. § 8992-1, et seq. That case merely follows the rule of our prior decisions in such cases as H. E. Westerman Lbr. Co. v. Raschke, 167 Minn. 243, 208 N.W. 960; Hasey v. McMullen,109 Minn. 332, 123 N.W. 1078; Nickerson v. Crawford, 74 Minn. 366,77 N.W. 292, 73 A.S.R. 354.
The distinction as pointed out in Nickerson v. Crawford,supra, is that in the one case the homestead is subject to a specific lien or charge, and in the other that it is subject to seizure and sale for the debt. A lien and a debt are enforceable as such.
The distinction controls decision in cases involving the priority of claims as it did in Bagley v. Pennington, 76 Minn. 226,78 N.W. 1113, 77 A.S.R. 637, where the question was whether an attachment based on claim for labor and material was a lien on a homestead entitled to priority over a subsequent conveyance. If such a debt is given the status of a lien, one whose debt is for labor and material must be accorded the rights of a lien holder as against conveyances, attachments, and other liens. That is contrary to our settled law.
Plaintiffs' claim is enforceable as a debt, not as a lien or charge on the homestead. It is apparent from 3 Mason Minn. St. 1940 Supp. § 8992-107, that the liens and charges referred to in § 8992-27 are those that were in existence at the time of the decedent's death, such as mortgages, mechanics' liens, and the like. Quite apart from § 8992-107, the meaning is clear that § 8992-27 refers to liens and charges in existence at such time and not those that might be created after death by legal proceedings or otherwise. Under § 8992-107 a creditor may recover from the next of kin, legatees, or devisees "to the extent of the assets received, upon any claim not required to be filed by *Page 157 Section 101." In In re Estate of Peterson, supra, 198 Minn. 45, 50,268 N.W. 707, 709, we held that a debt for labor and services was not required to be filed, where there are no assets for payment of claims other than the homestead, since the homestead is exempt from such debts "in the probate court." The several sections of the probate code are discussed in the Peterson case showing that the reasonable construction of the statute is that where the homestead is the only property a claim for labor and material is not provable in the probate court. Under § 8992-107 claims which are not required to be filed are not barred. Therefore this claim is not barred. It is enforceable against the heirs to the extent that the homestead is an asset received by them. The homestead is not exempt from claims 'for labor and material under the constitution. Hence the heirs are liable to plaintiffs to the extent of, and a judgment in favor of plaintiffs against defendants on the claim may be enforced against, the homestead. The principle is the same as in Ramstadt v. Thunem, 136 Minn. 222, 161 N.W. 413, where we held that a debt not barred by the nonclaim statute could be enforced against the heirs to the extent of property of the decedent received by them. *Page 158