LAWRENCE, J.
This action is brought to obtain a construction of certain portions of the will and codicil of Dr. Willard Parker, deceased. The testator died in the city of New York on the 25th of April, 1884. On the 5th of January, 1883, he executed his will, and on the 11th of January, 1883, he executed a codicil thereto. The will and codicil were duly probated on the 31st of May, 1884. The testator, at the time of making his will and at the time of his death, was the owner of certain lands and interests in lands and contracts for the purchase of lands in the state of West Virginia. In a portion of those lands the testator and his brother Grenville were jointly interested. Grenville died before the testator, and on the 14th of February, 1882, the testator made a contract, which is referred to in the codicil, to purchase his brother’s interest from his widow and daughter, and to pay therefor $18,000 and interest from that date, out of the first proceeds of sale of said lands, or to pay the purchase money in full at any time. After the testator had executed his will and codicil, a question arose between him and Emily T. Parker, who was the sole heir and administratrix of his brother Grenville, her mother having in the mean time died, in relation to the rights of his brother’s representative under said agreement. Thereupon the testator paid $18,000 purchase money, and received a deed from Emily T. Parker on the 14th of May, 1883. At that time he had received only a small part of the $18,000 from sales of the West Virginia property. Among the West Virginia lands embraced or referred to in the contract and deed from Emily T. Parker to the testator, was an interest in what was known as the “Guyandotte Tract.” The testator, with his brother Grenville, had originally become entitled to an interest in that tract under an agreement made on the 9th day of October, 1872, between William H. Aspinwall and Abiel A. Low, of the first part, and Willard Parker and Grenville Parker, of the second part, under which it was agreed that the said Aspinwall and Low, having obtained a deed for said property, should for the present retain all the legal title and hold the one-third thereof in trust for the said Willard and Grenville Parker, their heirs and assigns, subject to certain conditions, not necessary to be mentioned. On the 11th of December, 1883, Mr. Aspinwall and Grenville Parker having died, a deed was made by Mr. Low and the heirs and representatives of Mr. Aspinwall, in which deed Willard Parker joined, conveying the property to A A. Low, John A. Aspinwall, and Benjamin F. Butler. On the same day Messrs. Low, Aspinwall, and Butler executed a declaration of trust to Mr. Low, the heirs of Mr. Aspinwall, and Dr. Parker, in which the agreement of October 9, 1872, is recited, and the grantors covenanted and agreed to accept and hold said real estate, and all such right, title, and interest therein, as was vested in and held by the parties of the second part therein before and at the time of the execution of said deed of the parties of the second part to the parties of the first part, in trust for and to the only proper use, etc., of the parties of the second part, [1105]*1105their heirs and assigns forever, according to the right, title, and interest which they had respectively under the instrument above* referred to. The parties of the first, part further covenanted to make and execute in due form of law such conveyances in relation to fire real estate as the parties of the second part, or a majority in interest of them, their heirs and assigns, may in writing direct. Benjamin F. Butler, the trustee named in the sixth clause of the will, died December 11, 1884, and his son, Benjamin F. Butler, the present defendant trustee, was appointed in his place, pursuant to the provisions of his grandfather’s will.
It is sought in this action by the plaintiff to have two questions determined, viz.: First. Whether the proceeds of the sale of the Guyandotte tract of land, or the tract itself, so far as the interest in said proceeds and said tract of the testator are concerned, were withdrawn from the gift, devise, and bequest to Benjamin F. Butler in trust, as contained in the sixth clause of said will, by reason of and through the deed dated 11th day of December, 1883, executed by Dr. Parker and others to Abiel A. Low and others, and said declaration of trust, of the same date, executed by Abie! A. Low and others to Willard Parker and others; and, if so withdrawn, to whom said proceeds of sale are payable, the same being claimed both by said defendant, Benjamin F. Butler, as trustee, as belonging to the said trust under the said will, and by the plaintiffs as belonging to their residuary estate. Secondly. The court is asked to determine whether the sum of |18,000 and interesi, mentioned in the said codicil, or so much thereof as the said testator had not received in his lifetime, after the execution of said codicil, from Ms entire West Virginia property, over and above the current expenses of maintaining the said property, is or is not a valid and just claim on the part of the plaintiffs, as such executors, against the defendant, Benjamin F. Butler, as trustee, under the sixth clause of said will, to be paid by Mm to the plaintiffs prior to his making any distribution to the beneficiaries of his said trust.
I am of the opinion, as to the first question, that the delivery of the deed and declaration of trust of the 11th day of December, 1883, did not take the Guyandotte tract out of the provisions of the sixth clause of the testator’s will. The lands in question were not sold until January 6, 1890, and it appears from the evidence that, under section 9, of chapter 77, of the Amended Code of West Virginia, no conveyance or other act subsequent to the execution of a will shall, unless it be an act by which the will is revoked as provided in said statute, prevent its operation with respect to such interest in the estate comprised in the will as the testator may have power to dispose of by will at the time of his death. It is apparent, I think, from the provisions contained in the sixth clause of the will, that the testator designed to keep his interests, whether legal or equitable, in the West Virginia lands, entirely separate and distinct from his residuary estate. See sixth clause; and also the eighth clause of the will, by which latter clause, providing [1106]*1106for the distribution of his residuary estate, the testator excludes therefrom the lands and other interests in property in West Virginia, which are specially disposed of in the sixth clause of this will, and where he declares that whenever the words “‘residuary estate’ are used in this will they are intended to designate my estate, including and excluding the properties as in this clause designated.” If we turn to the codicil, it will also be found that the testator declares that the property disposed of in the sixth clause of said will is intended to include, among other things, “all rights which I may have in or in relation to certain lands and premises situated in the state of West Virginia, which were formerly owned by me in common with my deceased brother, Grenville Parker,” etc., “which his widow and surviving daughter have, -by an instrument duly executed between us, agreed to sell and convey to me for the agreed price of eighteen thousand dollars.” I think it clear that the testator did not intend that there should be a conversion of the lands into money by the deed and declaration of trust of December 11, 1883, (Read v. Williams, 125 N. Y. 571, 26 N. E. 730; White v. Howard, 46 N. Y. 144-162,) and that the doctrine of equitable conversion does not, therefore, apply.
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LAWRENCE, J.
This action is brought to obtain a construction of certain portions of the will and codicil of Dr. Willard Parker, deceased. The testator died in the city of New York on the 25th of April, 1884. On the 5th of January, 1883, he executed his will, and on the 11th of January, 1883, he executed a codicil thereto. The will and codicil were duly probated on the 31st of May, 1884. The testator, at the time of making his will and at the time of his death, was the owner of certain lands and interests in lands and contracts for the purchase of lands in the state of West Virginia. In a portion of those lands the testator and his brother Grenville were jointly interested. Grenville died before the testator, and on the 14th of February, 1882, the testator made a contract, which is referred to in the codicil, to purchase his brother’s interest from his widow and daughter, and to pay therefor $18,000 and interest from that date, out of the first proceeds of sale of said lands, or to pay the purchase money in full at any time. After the testator had executed his will and codicil, a question arose between him and Emily T. Parker, who was the sole heir and administratrix of his brother Grenville, her mother having in the mean time died, in relation to the rights of his brother’s representative under said agreement. Thereupon the testator paid $18,000 purchase money, and received a deed from Emily T. Parker on the 14th of May, 1883. At that time he had received only a small part of the $18,000 from sales of the West Virginia property. Among the West Virginia lands embraced or referred to in the contract and deed from Emily T. Parker to the testator, was an interest in what was known as the “Guyandotte Tract.” The testator, with his brother Grenville, had originally become entitled to an interest in that tract under an agreement made on the 9th day of October, 1872, between William H. Aspinwall and Abiel A. Low, of the first part, and Willard Parker and Grenville Parker, of the second part, under which it was agreed that the said Aspinwall and Low, having obtained a deed for said property, should for the present retain all the legal title and hold the one-third thereof in trust for the said Willard and Grenville Parker, their heirs and assigns, subject to certain conditions, not necessary to be mentioned. On the 11th of December, 1883, Mr. Aspinwall and Grenville Parker having died, a deed was made by Mr. Low and the heirs and representatives of Mr. Aspinwall, in which deed Willard Parker joined, conveying the property to A A. Low, John A. Aspinwall, and Benjamin F. Butler. On the same day Messrs. Low, Aspinwall, and Butler executed a declaration of trust to Mr. Low, the heirs of Mr. Aspinwall, and Dr. Parker, in which the agreement of October 9, 1872, is recited, and the grantors covenanted and agreed to accept and hold said real estate, and all such right, title, and interest therein, as was vested in and held by the parties of the second part therein before and at the time of the execution of said deed of the parties of the second part to the parties of the first part, in trust for and to the only proper use, etc., of the parties of the second part, [1105]*1105their heirs and assigns forever, according to the right, title, and interest which they had respectively under the instrument above* referred to. The parties of the first, part further covenanted to make and execute in due form of law such conveyances in relation to fire real estate as the parties of the second part, or a majority in interest of them, their heirs and assigns, may in writing direct. Benjamin F. Butler, the trustee named in the sixth clause of the will, died December 11, 1884, and his son, Benjamin F. Butler, the present defendant trustee, was appointed in his place, pursuant to the provisions of his grandfather’s will.
It is sought in this action by the plaintiff to have two questions determined, viz.: First. Whether the proceeds of the sale of the Guyandotte tract of land, or the tract itself, so far as the interest in said proceeds and said tract of the testator are concerned, were withdrawn from the gift, devise, and bequest to Benjamin F. Butler in trust, as contained in the sixth clause of said will, by reason of and through the deed dated 11th day of December, 1883, executed by Dr. Parker and others to Abiel A. Low and others, and said declaration of trust, of the same date, executed by Abie! A. Low and others to Willard Parker and others; and, if so withdrawn, to whom said proceeds of sale are payable, the same being claimed both by said defendant, Benjamin F. Butler, as trustee, as belonging to the said trust under the said will, and by the plaintiffs as belonging to their residuary estate. Secondly. The court is asked to determine whether the sum of |18,000 and interesi, mentioned in the said codicil, or so much thereof as the said testator had not received in his lifetime, after the execution of said codicil, from Ms entire West Virginia property, over and above the current expenses of maintaining the said property, is or is not a valid and just claim on the part of the plaintiffs, as such executors, against the defendant, Benjamin F. Butler, as trustee, under the sixth clause of said will, to be paid by Mm to the plaintiffs prior to his making any distribution to the beneficiaries of his said trust.
I am of the opinion, as to the first question, that the delivery of the deed and declaration of trust of the 11th day of December, 1883, did not take the Guyandotte tract out of the provisions of the sixth clause of the testator’s will. The lands in question were not sold until January 6, 1890, and it appears from the evidence that, under section 9, of chapter 77, of the Amended Code of West Virginia, no conveyance or other act subsequent to the execution of a will shall, unless it be an act by which the will is revoked as provided in said statute, prevent its operation with respect to such interest in the estate comprised in the will as the testator may have power to dispose of by will at the time of his death. It is apparent, I think, from the provisions contained in the sixth clause of the will, that the testator designed to keep his interests, whether legal or equitable, in the West Virginia lands, entirely separate and distinct from his residuary estate. See sixth clause; and also the eighth clause of the will, by which latter clause, providing [1106]*1106for the distribution of his residuary estate, the testator excludes therefrom the lands and other interests in property in West Virginia, which are specially disposed of in the sixth clause of this will, and where he declares that whenever the words “‘residuary estate’ are used in this will they are intended to designate my estate, including and excluding the properties as in this clause designated.” If we turn to the codicil, it will also be found that the testator declares that the property disposed of in the sixth clause of said will is intended to include, among other things, “all rights which I may have in or in relation to certain lands and premises situated in the state of West Virginia, which were formerly owned by me in common with my deceased brother, Grenville Parker,” etc., “which his widow and surviving daughter have, -by an instrument duly executed between us, agreed to sell and convey to me for the agreed price of eighteen thousand dollars.” I think it clear that the testator did not intend that there should be a conversion of the lands into money by the deed and declaration of trust of December 11, 1883, (Read v. Williams, 125 N. Y. 571, 26 N. E. 730; White v. Howard, 46 N. Y. 144-162,) and that the doctrine of equitable conversion does not, therefore, apply. Even if such doctrine did apply, I think it clear from the provisions in the will and of the codicil that it was the intention of the testator that the proceeds arising from the sale of the Guyandotte lands should pass into the hands of jfche trustee appointed under the sixth clause of the will and be distributed under the trust. I am also of the opinion that under the terms of the codicil the executors are not entitled to receive from the trustee, under the sixth clause of the will, the sum of $18,000 and interest, or so much thereof as the testator had not received. in his lifetime, after the execution of said codicil, from his entire West Virginia property, over and above the current expenses of maintaining the same. The codicil provides that the trustee named in the sixth clause of the will, after paying out of the proceeds of the sale of this trust property in said clause devised to him, such taxes or other charges or incumbrances as he may deem proper, etc., shall use and apply the next moneys received by him from the said trust property, whether from rents, proceeds of sale, or otherwise,' in and towards the payment and satisfaction of said sum of $18,000, or so much thereof as shall "then remain unpaid according to the provisions of the above mentioned agreement. At the time that the codicil was made, Dr. Parker was under a contract to Eliza A. Parker, the widow of his brother, and Emily T. Parker, his daughter, to pay out of the first moneys received by him from the sale and disposal of the lands mentioned therein the sum of $18,-000, etc., postponing any participation by himself as joint owner in any of said avails or proceeds of sale until the said sum of $18,000 is fully paid. It was further provided in the contract that Dr. Parker might, without waiting for a sale of the lands, have the right to make payment of the consideration money mentioned in the agreement, and that such payment should [1107]*1107have the same force and effect as if made from the avails and proceeds of said lands, etc. It appears that on the 14th of May, 1883, as differences had arisen between Dr. Parker and Miss Parker, (Mrs. Parker having died,) he paid to his0 niece the sum of $18,000, and took a deed of all her interest in the lands referred to in the sixth clause of his will and in the contract. Dr. Parker having availed himself of the option which was contained in the contract to malte payment of the $18,000 before such an amount had been realized from the sale of the lands, it seems to me that it cannot be successfully contended that he intended to charge his West Virginia estate with the payment of that sum to his executors. As I read the codicil, it was only in the event that the $18,000, or a portion thereof, remained unpaid at the time of Dr. Parker’s death, that the trustee was to devote the first moneys received by him from the proceeds of the sale of the lands after payment of taxes, assessments, and incumbrances to the payment of the amount due to his brother’s heir. I discover no intention on his part to charge that sum upon the proceeds of the West Virginia lands for the benefit of his residuary estate. For these reasons I am of the opinion that the defendant is entitled to judgment, with costs. Settle findings on two days’ notice.