concurring specially. I concur in the judgment of reversal, and in all except the ruling announced in paragraph 5. From this ruling I dissent.
Section 3307 of the Civil Code of 1910, which is a codification of an act approved September 30, 1885 (Ga. L. 1884-5, p. 124), provides that while deeds or bills of sale to personalty to secure debt and which are not recorded are valid against the persons executing them, they are “postponed to all liens created or obtained, or purchases made, prior to the actual record of the deed or bill of sale.” The “liens created or obtained” referred to “'embrace both liens created by contract and arising by operation of law,” which include a “common-law judgment” against the maker of the deed or bill of sale to secure debt. Saunders v. Citizens First National Bank, 165 Ga. 558 (142 S. E. 127). See Merchants &c. Bank v. Beard, 162 Ga. 446, 450 (134 S. E. 107). Under the authorities cited in paragraph 1 of the syllabus the right of the widow and minor children of the deceased to a year’s support out of his estate vests upon his death. This right is, as provided in section 4000 of the Civil Code of 1910, superior to other designated “liens” created during the lifetime of the deceased. While it has been held that the right to a year’s support is not a debt due the widow and minor children, but is a mere distribution of the estate, it is stated in Barron v. Burney, 38 Ga. 264, that, “in a strict sense, it is a provision, an incumbrance, higher than any debt.” An “incumbrance” fixed by law in favor of one person upon the property of another necessarily constitutes a lien upon the property. See definition oE liens in 37 C. J. 306 et seq. and Bouvier’s Law Dictionary, title “Lien.” The right to a year’s support in the estate of the deceased which vests upon his death is therefore a lien upon the estate.
The return of the appraisers setting aside property of a decedent as a year’s support to the widow and minor children and its record with the ordinary, as provided in section 4043 of the Civil Code of 1910, and which, as provided in section 4044 of the Civil Code of 1910 “vests” “the property so set apart” in the widow and minor children, constitutes a judgment, and as stated in Birt v. Brown, 136 Ga. 23, 25 (31 S. E. 755), “has the binding force and effect of any other judgment of a court of competent jurisdiction.” See Fulghum v. Fulghum, 111 Ga. 635, 637 (36 S. E. 602); Reynolds *639v. Norvell, 129 Ga. 512 (59 S. E. 299). A judgment of a court constitutes a “lien.” Civil Code (1910), § 3330. A judgment setting aside a year’s support to a widow and minor children constitutes a lien upon the property set aside. Josey v. Gordon, 107 Ga. 108, 110 (32 S. E. 951); 24 C. J. 271; Klein’s Estate, 14 Pa. Co. Ct. 72; Reilly v. Reilly, 139 Ill. 180 (28 N. E. 960).
Although a judgment setting aside a year’s support may, under section 4044 of the Civil Code of 1910, automatically place the title to the property in the wife and minor children, and thereby amount to an extinguishment of the lien by what appears to be an automatic foreclosure of the lien, the lien which arose at the time of the death of the deceased and which inheres in the judgment afterwards rendered is, until its extinguishment by the foreclosure, a valid and subsisting lien upon the property set aside as a year’s support; and while this lien exists, it, by reason of the provision of section 3307 of the Civil Code of 1910, supersedes the creditor’s right and title in the property which arose out of an unrecorded bill of sale to secure a debt. Of course, if the lien superseded the creditor’s right under such a bill of sale, the title of the widow and minor children in the property after it is set aside as a year’s support supersedes the creditor’s title under the bill of sale.
Section 3307 of the Civil Code of 1910, which postpones the unrecorded instruments there described to liens created or obtained prior .to the record of such instruments, has reference only to instruments conveying title for the purpose of securing a debt, and not to instruments conveying the absolute fee-simple title to the entire interest or estate. Therefore Odom v. Hoppendeitzel, 153 Ga. 20 (supra), where it was held that where land has been sold by the deceased and conveyed “by an absolute fee-simple deed,” and the property at the time of the vendor’s death “is no longer a part of his estate,” the widow is not entitled to a year’s support in the property, notwithstanding the deed has never been recorded, manifestly settles nothing as respects the claim of a widow and minor children to a year’s support in property of the deceased which had not been sold and the title to which had not passed out of the estate by “an absolute fee-simple deed” but which had been conveyed by an unrecorded conveyance passing title for the purpose only of securing a debt, and where the property subject to this conveyance remained a part of the estate of the deceased. The last situation *640is governed by tbe provisions of section 3307 of the Civil-Code of 1910.
While it is true, as provided in the Civil Code (1910), § 3307, and as ruled in Odom v. Hoppendeitzel, 153 Ga. 20, and Griffeth v. Haygood, 174 Ga. 22 (supra), that unrecorded conveyances, whether they convey title only as security for a debt or an absolute fee-simple title for all purposes, are good to all intents and purposes between the parties, and that where the property has been sold by the deceased and all his right, title, and interest therein has been conveyed, although by an unrecorded deed or bill of sale, the instrument is good as against him and the property constitutes no part of his estate, and there is therefore nothing to which a year’s support can attach, it does not follow, where the title to property has been conveyed solely for the purpose of securing a debt and the instrument has never been recorded, that, notwithstanding section 3307 of the Civil Code of 1910, the entire interest in the property is not subject to a year’s support to the widow and minor children.
While it is true, as has been held, that a year’s support must be set aside out of the “estate” of the deceased, and where property has been conveyed and title passed by the deceased to a creditor, to secure a debt, the deceased’s estate in the property consists in his interest in the property subject to the conveyance, which is his equitable right to redeem the property on payment of the debt, it is nevertheless true that a creditor’s right, title, and interest in the property as evidenced by the title vested in him as security for a debt may, by his failure to record the instrument, be, as provided in section 3307 of the Civil Code of Í910, rendered subservient to the right of the widow and minor children to a year’s support in the entire interest in the property, and that the entire property, freed of the creditor’s claim, constitutes, as respects the right of the widow and the minor children to a year’s support, property belonging to the estate of the deceased.
In Garrard v. Milledgeville Banking Co., 168 Ga. 339 (supra), where it was held that the widow’s claim to a year’s support in shares of stock which the husband, by a bill of sale passing title, had assigned and conveyed to the bank as security for a debt, was not superior to the title of the bank, the bank had possession of the shares of stock. The possession by the bank served all the purposes of a record of the bill of sale.
*641I am therefore of the opinion that the right of the widow and minor children to a year’s support is, by the provisions of section 3307 of the Civil Code of 1910, superior to the claim of a creditor under an unrecorded bill of sale to secure a debt.