(concurring). I agree with that part of the Majority Opinion which holds that the entirety estate had not been dissolved at the time of the death of Charles Killgo; but I am of the opinion that Mr. Killgo’s estate is entitled to recover the $1,640.00 which he paid after August 1953 to retire the principal indebtedness on the mortgage of the entirety estate.
When Mr. and Mrs. Killgo were divorced they entered into a property settlement agreement which provided :
“It is understood that the decree to be entered herein is to provide that Charlie C. Killgo is to have possession, use and control of the place of the parties . . . together with the furniture therein, until such time as the parties to this case may agree on a sales price for such, at which time, on such agreement, the proceeds are first to be used to reimburse Charlie C. Killgo for all monies he has paid or ivill pay on the mortgage on same after date of August 1953, after which the balance of the proceeds is to be divided between the parties hereto equally.” (Emphasis supplied.)
The settlement agreement was approved by the divorce decree, and it determined the disposition to be made of the proceeds of the sale of the premises. The Chancery Court held that Mr. Killgo’s occupancy of the property required him to pay the taxes, insurance, repairs, and interest on the mortgage indebtedness; that portion of the decree is not questioned. But the Chancery Court held that Mr. Killgo’s occupancy of the property also required him to pay the principal on the mortgage indebtedness. That holding is challenged because it is in direct opposition to the terms of the property settlement agreement of the parties (approved by the Court) which specifically recited that on the sale of the property, Mr. Killgo could recover all principal payments he made on the mortgage after August 1953; and these principal payments were definitely established at being $1,640.00.
In Jones v. Jones, 236 Ark. 296, 365 S. W. 2d 716, the parties to a divorce suit made a property settlement agreement by the terms of which the husband was to make the mortgage payments on the entirety prop-erty until it should be sold; and we enforced the agreement between the parties. So the Jones case is authority for the statement that Mr. Killgo could have enforced the agreement and recovered the $1,640.00 if the sale had taken place in his lifetime. I maintain the property settlement agreement gave Mr. Killgo a chose in action against the property and his former spouse. The fact that the sale did not take place during the life of Mr. Killgo does not prevent the rights of Mr. Killgo from passing to his estate as any other chose in action. In Smead v. Chandler, 71 Ark. 505, 76 S. W. 1066, Justice Battle said:
' ‘ The terms or phrases ‘ choses in actions ’ and ‘ debt ’ are used by courts to represent the same thing when viewed from opposite sides. ‘ The chose in action is the right of the creditor to be paid, while the debt is the obligation of the debtor to pay. ’ ” 1
That a chose in action passes to the estate of the deceased is established by unlimited authority. See C. J. S. Yol. 26-A, Page 533 et seq., “Descent and Distribution” § 8. The Supreme Court of Utah, in the case of Harper’s Estate, 265 P. 2d 1005, held that all property rights granted the husband by a divorce decree vested in his heirs, even when his death occurred prior to the time when the decree became absolute. So I maintain that Mr. Killgo’s estate received the chose in action for the $1,640.00 and his estate should have a first lien on the property for such amount.
For other definitions of chose in action see Black’s Law Dictionary.