court of Lee county making the widow, Jessie Johnson, the daughter, Nettie M. Killian, and the infant children of Nettie M. Killian, defendants, and praying for a construction of the will. The court appointed Sherwood Dixon guardian ad litem for the infant defendants, and answers were filed setting up the claims of the defendants, respectively, under the will. A decree was entered construing the will, from which the executor and Nettie M. Killian prosecuted appeals, and the appeals were consolidated in this court.

By the first clause of his will Squire E. Johnson directed the payment of his debts. By the second he gave to his wife his household and kitchen furniture. By the third he gave to his daughter, then Nettie M. Place but since married to Oliver L. Killian, a piano. By the fourth clause he devised to his wife his homestead for life with remainder to his daughter, provided the daughter should occupy the same as a home, and if she failed to occupy the premises they were to be sold by the executor and the proceeds invested in farm property in Lee county, as thereinafter provided. By the fifth clause he devised to his wife a farm of about 340 acres for life with remainder to his daughter for life and remainder after her death to her children in fee simple. By the sixth clause he devised to his daughter 166 acres of land in Lee county for life with remainder to her children in fee. By the seventh clause he directed his executor, as trustee, to sell and convey at private sale all the rest, residue and remainder of his estate, both real and personal, wherever situated, except any farm property in Lee county owned by him at the time of his death, and to collect all credits, moneys, notes, bonds, mortgages and other securities, and after paying all his debts to invest the same in farm lands in Lee county and cause the title to the real estate so purchased to be invested in his daughter for life with remainder to her children in fee, and if the daughter should not be living at the time of the purchase, the title was to be vested in her children as tenants in common,

in fee simple. By the eighth clause he declared his intention that the foregoing should operate to dispose of his property of every kind and character, but if any provision should fail, he gave, devised and bequeathed the same to the children of his daughter.

The will specifically devised all the property of the testator which he owned when the will was made, in 1914, except an undivided one-sixth interest in a farm of 255 acres in Lee county, which either passed by the eighth clause or was included in the devise to the trustee to sell and convey the same under the seventh clause. The testator afterward acquired other lands and real estate in Lee county and in South Dakota and owned the same at the time of his death, in 1920. Among the lands purchased by the testator after the will was made was a farm of 440 acres in Lee county, conveyed to him on October 27, 1919, by Robert L. Watson and wife. That farm was subject to a mortgage for $24,000, due March 1, 1923, with interest payable annually at five and one-half per cent, executed by Norman G. Reitzel and wife. Reitzel and wife had conveyed the farm to Watson, who assumed and agreed to pay the mortgage indebtedness as part of the purchase price, and on the conveyance to the testator he assumed and agreed to pay the mortgage indebtedness when due, with the interest, after March 1, 1920. The court decreed that the personal property should not be used for the payment of the mortgage indebtedness or the interest thereon but the land was the primary fund for the payment of the same; that it was the intention of the testator to devise all his real property not otherwise specifically devised, to the children of his daughter, and that, subject to her dower, the title to the undivided one-sixth interest in the farm land above mentioned was vested in said children.

The positions of the several parties as to the construction of the will are as follows: James W. Watts, the executor, Nettie M. Killian and the guardian ad litem con

tend that the personal property is the fund out of which the mortgage indebtedness on the 440 acres should be paid. Jessie Johnson, the widow, insists that the mortgaged land is the primary fund out of which the mortgage indebtedness is to be paid, as directed by the decree. The executor claims that he is authorized to sell the undivided one-sixth interest in the 255 acres and invest the proceeds, with other funds, in farm land in Lee county. Nettie M. Killian contends that the one-sixth interest and the farm purchased from Watson are intestate property and descended to her as heir-at-law, subject to the dower of the widow, and that the executor cannot sell the one-sixth interest. The guardian ad litem claims that the farm incumbered by the mortgage, and the undivided one-sixth interest, were devised by the eighth clause of the will to the infant children of Nettie M. Killian, whom he represents.

The most important question is whether the personal estate or the land is the primary fund for the payment of the mortgage indebtedness. The mortgagee did not file any claim against the estate on account of the mortgage debt within the time limited by law, so that he has no claim against the personal estate, and the question is to be determined between the widow and the other claimants of the fee.

There have been some decisions in cases arising between persons liable for mortgage debts where it has been said. that land purchased by the holder of a mortgage was in his hands the primary fund for the payment of the mortgage. In Lilly v. Palmer, 51 Ill. 331, a mortgagor sold the mortgaged premises subject to the mortgage, and a third party who purchased the mortgage afterward obtained. the title to the land, so that he became vested with the estates of both mortgagor and mortgagee. It was held that the mortgage was thereby paid and discharged and the purchaser stood in the position of one who had effected a strict foreclosure. The doctrine of merger of the estates was applied. The same doctrine was held in Drury v. Hol

den, 121 Ill. 130. Again, in Fish v. Glover, 154 Ill. 86, it was said that as between the mortgagor and the grantee of mortgaged property who assumes the mortgage debt, the latter becomes the principal debtor and the former surety for the payment of the debt, and that as between them the mortgaged property becomes the primary fund. But this is only true as between the grantee of the mortgagor assuming the mortgage debt and the mortgagor himself. That rule rests upon the relation of principal and surety and the rights of a surety to the benefit of collateral.

The law applicable where the question arises between a widow and heirs or devisees was determined in Sutherland v. Harrison, 86 Ill. 363. In that case there were no children and the widow received all the personal property. A bill being filed to enforce a vendor's lien upon the real estate against the heirs of the purchaser, the heirs filed a cross-bill praying that the widow be required to satisfy the lien from the personal estate. It was contended by the widow that the land was the primary fund to be first applied in payment, and the court said that as supporting that position a class of cases was cited where one purchases an estate subject to a charge made by the previous owner, and it was held that the estate charged was the primary fund, but there was no such principle of general application. The court said it was well settled that the personal estate is the natural and primary fund for the payment of debts and legacies, and that there was no distinction between the case where there is a mortgage on land and that of a debt for unpaid purchase money for land where there is a vendor's lien therefor. There was a very full review of the authorities, and it was held that while the law gave to the widow the personal property, that did not mean all the personal property which the decedent died possessed of, but the residue of the personal estate after the payment of all debts. A decree requiring the widow to pay out of her own money, without contribution from the heirs, the amount

of the vendor's lien was affirmed. There is no distinction, in principle, between that case and this. The testator became personally liable to pay the mortgage indebtedness, and when due an action at law could have been maintained against him if living. As he died before the maturity of the debt the mortgagee could have filed his claim against the estate and had it allowed as a debt payable as any other debt. When the debt became due the testator would have paid it and have depleted his personal estate to that extent, or if there was a judgment against him his general property would have been subjected to payment.

Dean v. Walker, 107 Ill. 540, was an action of assumpsit against a grantee who had assumed and agreed to pay as a part of the consideration a mortgage indebtedness. The court commented on the doctrine maintained by some courts that the right of the mortgagee rests upon equitable subrogation but did not follow that doctrine, and placed the liability of the mortgagee on what was said to be the great and well settled principle that where one person makes a promise to another based upon a valid consideration for the benefit of a third person, such third person may maintain an action upon it. In Webster v. Fleming, 178 Ill. 140, the doctrine of Dean v. Walker was indorsed, and it was held that the purchaser of incumbered property who assumes and agrees to pay the incumbrance is personally liable to the holder of the incumbrance.

The substance and effect of the purchase by the testator was that the incumbrance was a part of the consideration left in his hands and which he was bound to pay. There was no dower as against the mortgage, and the right of the widow, upon renouncing the will, to take one-third of the personal estate was not a right to take the whole personal estate at the time of the death of the testator, but only one-third after the payment of all debts and obligations. She obtains her full statutory right by receiving onethird after payment of the mortgage indebtedness. It is