dissenting. Finding myself unable to concur with a majority of the court in the decision of the-main question involved in the case, I will, as briefly as possible, state the grounds of my dissent. The question is-well stated, in the opinion read, to be: “Is an unfiled chattel-mortgage valid, as against the executor or administrator of an insolvent mortgagor, where the possession of the property passes directly from the deceased mortgagor to his personal representative ?” It is firmly settled, not only by the weight, but by the whole current, of authority, that, as between the mortgagor, retaining possession of the property mortgaged, and the mortgagee, the mortgage isperfeetly valid without that filing, necessary to its validity “against the creditors of the mortgagor and subsequent purchasers and mortgagees in good faith.”
And it is fully as well settled that prior to the death of the mortgage-debtor, such unfiled mortgage is equally and as perfectly valid against his creditors, until seized by some-process of law. Wilson v. Leslie, 20 Ohio, 161; Brown v. Webb, Ib. 389; Thompson v. Van Vechten, 27 N. Y. 568. In Wilson v. Leslie, the court, in speaking of the effect of an omission to file the mortgage, says, that- “ it would not be-*286■void against the mortgagor, if not filed at all. It would not be void against that class of creditors who are equally remiss with the mortgagee, and took no steps to fasten upon the property for the payment of their debts. But when filed, the instrument becomes valid and effective against all men except those whose rights have thus previously attached.” In Thompson v. Van Vechten, supra, it was held, that “ a mortgage, not filed, of a chattel, is void .as to a creditor at large. But creditors can not question the mortgage until they have obtained process against the property.” It is, however, said that where the mortgagor dies in the possession of the property mortgaged, and insolvent, that there is nothing for the heirs to take, and, therefore, that all the assets are administered for the exclusive benefit of the creditors. In other words,' that the executor or administrator, in such case, represents the creditor alone, and may insist that, as to him, the mortgage never took effect. A careful examination of the provisions of the statute bearing upon the question satisfies me that this proposition is entirely without foundation, either in law or in fact. The unfiled mortgage is, by the terms of the statute (S. & C. 475), as fully void against creditors where the estate is solvent as where it is insolvent.
The 82(1 section of the administration act (1 S. & C. 580) provides that every executor or administrator shall apply the assets arising from the personal estate and effects to the payment of debts in the following order:
“First. The funeral expenses, those of the last sickness, and the expenses of administration.
“Secondly. The allowance made to the widow and children for their support for twelve months.
“Thirdly. Debts entitled to a preference under the laws of the United States.
“Fourthly. Public rates and taxes, and sums due the state for duties on sales at auction.
“Fifthly. Debts due to all other persons.
“And if there be not enough, after paying the said first *287-class, to pay all the debts of any one of the other classes, .all the creditors of that class shall be paid ratably, in proportion to their respective debts; and no payment shall be ■made to creditors of any one class until all those of a pre.ceding class or classes, of whose claims the executor or administrator shall have had notice, shall be fully paid.”
It will be seen that general creditors belong to the fifth class, and they are not to be paid until after the payment of the funeral expenses, which may include a reasonable .amount for a tombstone or monument (S. & S. 356), and the expenses of administration. Now, it seems to me that the proposition admits of no doubt that the funds arising from the sale of property under a mortgage, valid and binding as between the mortgagor and mortgagee, can not be employed to defray the expenses of burial, or the general expenses of administering the estate. Much less is the proposition open to doubt ^hat these funds can be applied or appropriated to the payment of the allowance to the widow and minor children for their support for twelve months. Yet the statute makes it the first duty of the executor or administrator, in distributing the funds of the estate, not subject to lien, to pay out of them, not the claims of the creditors, but debts and obligations that had their origin and were wholly incurred after the death of the mortgagor, as well as those of the last sickness.
It is perfectly obvious that the mortgaged property, or the fund arising from its sale, can not be diverted or appropriated to the payment of any such claimor to any .claim against the estate that did not exist before the death ■of the mortgagor. As well might the heir claim the property as the widow and minor children. It is not pretended that the mortgage, for want of filing in the proper office prior to the death of the maker, is void, or that its lien is at all affected or impaired, except as against creditors wnose debts were subsisting at the time the maker died. The ■debts incurred in burial and in the general administration ,of the estate must look to other funds for their payment. *288So, also, the fund out of which the allowance to the widow and children is paid must come from other sources.
Those to whom these obligations are due are in no sense-creditors of the mortgagor; and, as to them, the mortgage •was as valid and effectual to pass the property as if duly filed on the day of its execution. It must not be forgotten that the general creditors had no specific lien on the property. The most that is claimed is, that, as to them, the mortgage for want of filing is inoperative and void, and that the property covered by it drops into and becomes general assets to be administered ; and, like all other personal estate of the deceased debtor, j.s to be distributed in the manner and in the priority directed by the statute. But the statute expressly declares that no payment shall be made to creditors of any one class, until all those of the-preceding class or classes have been fully paid.
The general creditors, belonging as they do to the fifth class, can not receive a farthing until the claims of the-four preceding classes have been satisfied. Then what follow's ? If the mortgage fund is all there is to be administered, one of three things must necessarily follow : (1.) The funeral expenses, and those of the administration of the estate, together with the allowance to the widow and minor children for their support for twelve months, must he paid out of the mortgage fund ; or (2.) The positive provisions of the statute prescribing the mode and order of distribution must be disregarded by paying the creditor-first ; or (3.) The mortgage was, at the mortgagor’s death, a perfectly valid and effectual security in favor of the mortgagee against all the world. The first of these propositions-will not be contended for, for a moment. And the second can in no case be justified or defended.
But further: By section 83 of the same act it is provided that “ nothing in the preceding section shall affect or impair any lien, legal or equitable, which anjr creditor or other person shall have upon the personal estate of the deceased during his lifetime.”
I agree that no lien, legal or equitable, is created or de*289fined by this section of the statute. But to assert that no lien existed under the mortgage in controversy, in favor of the mortgagee, during the lifetime of the mortgagor, as: against those for whom his personal representative now claims the fund, is, I respectfully submit, a begging of the question. The executor is entitled to the fund, if at all, not as the especial representative of any class of persons, but as the representative of the estate, and of all classes that are interested in its distribution. He is entitled to it for funeral expenses, for the expenses of the last sickness, for general expenses of administering the estate, for allowance to widow and children, as well as for the general creditors. And he must devote it to these purposes, and in the order named.
That the mortgagee had a legal hen upon the property, whose title is in controversy, during the lifetime of the decease^ mortgagor*, is not questioned. This being so, if section 83 does not afford protection to liens of this character, it is difficult to discover the object of its enactment, or its legal efficacy or value; for, if the mortgage is duly filed, and its validity thereby secured against everybody, it needs no such protection, upon the death of the mortgage debtor, as that section purports to afford ; and, therefore, in such case, thqre is no necessity of withdrawing property, covered by such liens, from the operation of section 82. It was-the manifest purpose and object of the statute to reach eases of this character. But, again, the principle asserted in the present case, has been directly adversely settled by a former and well-considered decision of this court.
In Fosdick v. Barr, 3 Ohio St. 471, and Sidle v. Maxwell, 4 Ohio St. 236, it was held, that, as between a mortgagor and mortgagee of real estate, it was not necessary to the validity of the mortgage, that it be recorded, or even left for record.
And in Bloom v. Noggle, 4 Ohio St. 45, it was settled, that such mortgage of realty, under the provisions of the statute (1 S. & C. 469), did not take effect, as to third par*290ties, until delivered to the recorder of the proper county, to be by him recorded. This rule is firmly established by repeated adjudications of this court. Bercaw v. Cockerill, 20 Ohio St. 166. Without delivery for record, such mortgage as to creditors of the mortgagor is as ineffectual and inoperative to convey or incumber the estate as if it were never executed. To be without effect, is, in the language of the chattel mortgage act, to be absolutely void.
Net in Gill v. Pinney, 12 Ohio St. 38, it was held, that “ a mortgage, not recorded until after the death of the mortgagor, is not, for that reason, inoperative as against the general creditors of the estate.” Here the question was squarely made, between a mortgagee, whose mortgage had not been left for record during the lifetime of the mortgagor, and which, therefore, at the time 'of the mortgagor’s death was without effect, and the general creditors of the estate.
The interest of the general creditors in the mortgagor’s real estate, to the extent required to pay the debts of the estate, is precisely the same as their interest in the personalty. Piatt v. St. Claire, 6 Ohio, 227; Douglass v. Massie, 16 Ohio, 271; McDonald v. Aten, 1 Ohio St. 293. And hence, in Gill v. Pinney, the creditors asserted their right to the property to be paramount to the interest of the mortgagee under an unrecorded mortgage, as the executor here asserts for the creditors a paramount right to the property mortgaged, because the mortgage was not filed in the proper office before the death of the mortgagor.
In answer to this claim the court, through Scott, O. J., said: “A creditor acquires no specific lien by his debtor’s death. If he was a mere general creditor before the death, he remains such after. His position with respect to other creditors remains unchanged. He and they have the same right, through the intervention of an administrator, to subject to payment of their debts, if necessaiy, all the property of their debtor which has passed to his heirs, devisees, or legatees. This right, which constitutes the lien in question, is acquired by no act of diligence on the part of the cred*291itor; it arises from no act of the debtor, but results merely from the act of God. It attaches with the change of title, .and in consequence of such change. The lien must, therefore, be limited to the property which passes; and to that in the condition in which it passes.”
Now, when it is considered that the real estate ,of a deceased debtor is, as above stated, to the extent needed to supply the insufficiency of the personal property to pay the debts of the estate and expenses of-administration, assets in the hands of the executor or administrator, how is it possible that a real mortgage, not left for record until after the •death of the mortgagor, can be valid and binding against his general creditors, unless an unfiled mortgage of personalty is also valid ? The lien of each was perfect against the mortgage debtor a moment' before his death; but, a moment after, one is said to be gone — lost by “ no act of ihe debtor,” by “ no vigilance of the creditor,” but “ by the mere act of God.” "While the other, entirely without effect, .and therefore wholly void until delivered for record, survives the death of the maker, an effectual security in the hands •of its owner. That the rule in the two cases is precisely the same, and was correctly laid down in Gill v. Pinney, is, to me, perfectly clear. The mortgaged property passed to the executor as it left the debtor, as fully subject to the lien of the mortgage as it was during the lifetime of the ■deceased mortgagor.
Gilmore, J., concurred in this opinion.