Cyrus Newkirk purchased, by warranty deed, one hundred and twenty acres of land upon which there were two mortgages securing two separate notes, one for $1,000 and the other for $200. The deed recited that New-kirk assumed to pay said notes. Afterwards, Newkirk died without paying the notes. He left a will with various provisions. The part bearing on this controversy bequeathed the land aforesaid to his two grandchildren. That is to say, it was “bequeathed and devised” to Gayes D. Lewis “in trust for the sole use and benefit of my said grandchildren, Cecil N. and Gladys I. Cherry, to be so held in trust until the said Gladys I. Cherry, she being the younger, shall have attained the age of twenty-one years, the. proceeds arising from the rents and profits of said real estate to be used by the said trustee in clothing and caring for my said grandchildren, and should either of my said grandchildren die without heirs of their body, then the survivor shall take the entire bequest, if their death occurs before coming into this bequest, and should both said grand*261children die without heirs of their bodies, before coming into the estate herein bequeathed, then it is my will that the estate herein bequeathed shall return to and become a part of the general estate and descend and be distributed under clause sixteen of my will.”
After Newkirk’s death, Lewis declined to act a3. trustee and this plaintiff, who became the legal owner of both the aforesaid notes, was appointed in his stead by the probate court and he presented them to the probate court of Linn county for allowance and classification. They were duly allowed. Thereupon plaintiff asked that the probate court order forty per cent of the allowance paid out of the estate, it appearing that there was, at that time, enough money on hands to make such proportion of payment on indebtedness. The probate court made the order as asked, and the executor of Newkirk’s estate appealed to this court. The claimant testified that in all he did he was acting for the interest of the children.
The executor contends that the claimant must first exhaust his mortgage security on the land before he can have a payment out of the general fund of the estate. The statute (section 191, Revised Statutes 1899) reads:
“When a claim is allowed against an estate which is secured by mortgage, deed of trust or other lien held by the creditor, the same may be allowed as other claims, but shall not be paid until such security held by the claimant has been exhausted; but if such security be not sufficient to pay off and discharge the débt of such creditor, then such creditor for the residue of his debt shall be entitled in common with other creditors to have the same paid out of the estate.”
That statute, with a view to the equity of the matter, was intended to compel creditors with mortgage security to exhaust such security before interfering with the general funds of the estate, thus protecting creditors who had no security. We are of the opinion that it applies to mortgages which the decedent may have assumed as fully as to- those he may have himself *262executed. In either ease he is personally liable for the debt and might, when alive, have been sued for it in either case as a personal claim owing by him.
But there is an additional consideration presented which, it seems to us, renders an affirmance of the judgment of the trial court imperative. It is a legitimate inference from the record that the estate of Newkirk is solvent and that creditors are not involved in this controversy. The object of this litigation is evidently this: The claimant wants the mortgage debt paid out of the general estate so that the grandchildren aforesaid may get the land, willed to them, free from the incum-brance. And the executor wants the payment to be made out of the land so that it will not come out of the general estate, and thus leave a larger estate to go to the other heirs. Whether this is the object or not, it is the effect the success of either position would bring about.
Now the statute aforesaid was enacted in the interest of creditors; and heirs, as such, nor the executor acting for them, have no right to call that law to their aid. So, therefore, in case3 where creditors are not interested the testator may dispose of his property as may to him seem best. In this case it is clear that the testator did not contemplate that the lands aforesaid should be sold for the incumbrances thereon and thus his infant orphan grandchildren be deprived of all protection. The will shows that he intended that that land should remain as an estate for the support, care and maintenance of the children until the youngest became twenty-one years of age. The language and entire import of the provision refutes the idea that the testator contemplated, or intended, that the property could be taken from the children. We therefore hold that the notes aforesaid must be paid out. of the general estate.
The foregoing disposes of the controlling questions in the case. The technical point as to the proper appointment of this claimant as trustee has no bearing on the question discussed. *263Tbe object of tbe proceeding was and is to protect tbe infant children, and tbis we believe bas been done.
Tbe judgment is affirmed.
All concur.