#### EMMA J. WOODWARD v. JESSE G. BALL et al.

(Filed 5 November, 1924.)

Wills — Equity—Conversion—Descent and Distribution.

Whether lands directed by the testator to be sold shall be regarded as personalty in whole or in part, under the doctrine of equitable conversion, depends upon his intent as gathered from his will; and a direction that his executor sell certain of his lands to pay his debts, and should a sur*506plus remain to pay it in certain amounts to designated beneficiaries, evidences bis intent that tbe full proceeds of the sale should be regarded as personalty, and after satisfying the bequests, the remainder, as personalty, is subject to the appropriate canon of distribution.

Appeal by plaintiff from Grady, J., at March Term, 1924, of “Wake.

John Parish made a will devising a lot on West Edenton Street in the city of Raleigh to his wife for her natural life and at her death to his daughter Mary Parish. On the death of her mother Mary Parish became the sole owner; and on 18 December, 1920, she died leaving a will, the third item of which is as follows:

“My will and desire is that the house and lot I inherited from my father John Henry Parish, 316 West Edenton Street, shall be sold by my executor or his successor and the debts owing to me collected, and if there should be any surplus over and above the payment of debts that such surplus shall be divided as follows: To my beloved cousin Miss Mollie J. Parish of Santa Ana, California, one hundred dollars. To my beloved cousin James H. Ashford of Portageville, New Madrid County,, Missouri, one hundred dollars. To my beloved cousin Yally B. Watson of Portageville, New Madrid County, Missouri, one hundred dollars. To my beloved cousin Percy Watson of Portageville, New Madrid ■ County, Missouri, now deceased, one hundred dollars to be equally divided among his heirs. To my beloved cousin Mrs. Emma J. Woodward, twenty-five dollars. To my beloved cousin Iowa S. Parish, twenty-five dollars all both of Raleigh, N. C. To my beloved cousin Sam M. Parish of Portsmouth, Va., twenty-five dollars. To the First Baptist Church one hundred dollars. To my beloved friend Mrs. G. E. Kennedy, twenty-five dollars. To my beloved friend Alice Ball, fifty dollars, each of Raleigh, N. 0.”

Six of the defendants are heirs at law of the testatrix on her mother’s side; the petitioner and all the other defendants are heirs at law on her father’s side. The property on West Edenton Street was sold and there remains in the hands of the executors $3,565.01 after deducting the legacies set out in the third item of the will. The testatrix was never married. She died leaving neither father nor mother, brother nor sister, uncle nor aunt. The fourth canon of descents is as follows: “On failure of lineal descendants, and where the inheritance has been transmitted by descent from an ancestor, or has been derived by gift, devise or settlement from an ancestor, to whom the person thus advanced would, in the event of such ancestor’s death, have been the heir or one of the heirs, the inheritance shall descend to the next collateral relations, capable of inheriting, of the person last seized, who were of the blood of such ancestor, subject to the two preceding rules.” O. S., 1654, Rule 4.

*507Tbe judgment directs tbe clerk, after deducting costs and an attorney’s fee, to pay tbe fund ($3,565.01) to the next of kin of tbe testatrix both on tbe father’s side and on tbe mother’s side in tbe proportions therein set out. Tbe plaintiff excepted and appealed.

John W. Hinsdale for plaintiff.

Manning & Manning for relators on mother’s side.

Adams, J.

Ey equitable conversion is meant a change of property from real into personal, or from personal into real, not actually taking place, but presumed to exist only by construction or intendment of equity. Bispham’s Prin. Eq., sec. 307; Duckworth v. Jordan, 138 N. C., 521; McIver v. McKinney, 184 N. C., 393. Tbe appellant does not deny that tbe testatrix directed an equitable conversion into personalty of tbe bouse and lot on West Edenton Street; but she contends that tbe conversion was limited' to the purpose of paying tbe specific bequests set forth in the third item of tbe will and that tbe portion of tbe fund remaining after satisfying these legacies should be treated as real estate subject to devolution as prescribed by tbe fourth canon of descents. She insists that as tbe conversion was intended for a specific purpose and this purpose was fulfilled there was a resulting trust in tbe surplus of tbe fund which passed to tbe heir as realty. But this principle does not apply when a contrary purpose is clearly indicated by the devise. After discussing tbe English doctrine Bispbam says: “In tbe United States tbe rule under consideration has not received a construction so favorable to tbe heir. In Craig v. Leslie it was said to be settled, 'that, if tbe intent of tbe testator appears to have been to stamp upon tbe proceeds of tbe land described to be sold tbe quality of personalty, not only to subserve tbe particular purposes of tbe will, but to all intents, tbe claim of tbe heir at law to a resulting trust is defeated, and tbe estate is considered to .be personal.’ It was accordingly held that tbe blending of tbe proceeds of tbe realty with tbe personalty, so as to form a common fund, for all tbe purposes of tbe will, though-it should happen that some of them fail, will render tbe conversion absolute.” Prin. of Eq., sec. 318.

This Court applied tbe principle in Phifer v. Giles, 159 N. C., 143, in which Allen, J., said: “The will of Mrs. Phifer bequeaths and devises personal and real property, in trust, with power to sell, without making any distinction between tbe two kinds of property, which is evidence of an intention to convert tbe whole to personalty (Burr v. Sim, 29 A. D., 52), and it directs tbe application of tbe proceeds, which indicates a purpose for all to be sold. Tbe general scope of tbe will, examined by itself and without reference to tbe facts now alleged, suggests that tbe testatrix thought it would be necessary to sell tbe whole, and that she *508disposed of it for that purpose, wbicb would be a conversion. Ford v. Ford, 2 Am. St., 124; Lent v. Howard, 89 N. Y., 169.”

A careful consideration of tbe devise in question convinces us tbat tbe testatrix intended to effect a conversion of tbe' property for tbe purpose of distributing tbe proceeds among ber next of kin botb on ber father’s side and on ber mother’s. Sbe directed tbat ber debts be collected, tbat tbe lot be sold and if a surplus should remain over and above tbe payment of debts such surplus should be distributed among ber legatees. It was ber obvious purpose to dispose of tbe 'entire proceeds of tbe sale as personal property; for sbe manifestly did not contemplate tbe disposition of any part of tbe surplus as real estate.

Tbe judgment is

Affirmed.