The question presented on this appeal is, when certain amounts paid by the trustees for taxes on an interest of the testator in certain unproductive real property should be paid from the income of the trust property. The testator had upwards of $250,000 of personalty, several parcels of productive real estate located in the city of New York, a resi*57dence at Newport, E. I., and an undivided .third interest in a tract of land at Williamsbridge. He had an income of from $35,000 to $15,000 a year, of which his property produced about $20,000 per year, and $20,000 per year was the income of certain property held in trust, to the income of which he was entitled for life, with remainder to his son. On April 27, 1911, he executed his will, and he died March 11, 1912, leaving him surviving his widow, the appellant, and one son, who was one of the trustees, his only heirs at law and next of kin. He had resided at Newport, E. I., for many years. By his will he left $100,000 and all his household furniture, pictures, jewelry and other articles of personal property to his wife, except certain articles which he specifically bequeathed to his son, and, with the exception of some legacies to servants and the sum of $25,000 in trust for his grandson and an annuity of $200 a year, he gave, devised and bequeathed all the rest, residue and remainder of his estate “ of every nature and kind, whether real, personal or mixed, and wheresoever situated, ” to trustees to pay to his wife during her life “the net annual income in quarterly installments,” and upon the death of his wife to pay such income to his son for life, with a remainder to the lawful issue of his son. He gave to his trustees a full power of sale or exchange of his real estate, and provided for the investment of the trust fund, “ charging any and all premiums paid upon said bonds, and securities to the capital of the trust, expressly directing that my said trustees, their survivors or survivor, successors or successor, shall apply the entire amount received for interest on such bonds as income to the benefit of the life beneficiary, and shall not retain any amount thereof for a sinking fund toward reimbursement to the principal of the premiums paid on the purchase of such bonds.” The will further provided that the trustees may account to the satisfaction of the trustees and of the cestuis que trustent, but not remaindermen; that the provision for his wife should be in lieu and bar of dower, or in satisfaction of all claim to a distributive share of his estate.
A consideration of the careful provisions of this will must satisfy any one reading it that the first thought of the testator was to insure to his wife an income for her life. The interest *58on all the bonds was to be paid to her, and no amount was to be retained for a sinking fund, and all the net income of the residue of his estate was to be paid to his wife and, after her death, to his son. When the will was executed the testator owned an undivided third interest in the Williamsbridge farm. He treated this as distinct from his other property, evidently understanding that it would be disposed of before his death. The will recited that he had an agreement with his brother and sister to divide the farm if it was not sold before July 28, 1911, and then directed that the proceeds of my said interest in, or share of, said farm shall he divided as follows.” If he sold his entire interest in said farm before his death then his son was to have $100,000. If he sold part of it, his son was to have twenty-five per cent of the net proceeds of such sale. If after his death the interest in the farm was sold by his trustees, then his son was to have twenty-five per cent of the amount realized from such sale or sales, with no provision as to what should be done with the remaining seventy-five per cent. The agreement with his brother and sister to divide the farm was not carried out during his life, nor was any of it sold either before or after the death of the testator, and it is evident that since his death conditions have existed that have made it impossible to sell at anything like its value; but it produces no income, and the taxes that have been imposed and the cost of carrying it have absorbed all the income of the estate, so that the wife has received but $3,060.62 during a period of more than two years from the testator’s death.
It would seem that the net income from the estate during this period has been about $23,218.63. From this has been expended on the Newport property, which has been occupied by the widow, $8,824.45, and for carrying charges and taxes on the Williamsbridge property $9,877.19. The trustees paid this sum for taxes out of the income received from the balance of the trust. The widow claims that these taxes and charges should not be paid out of such income, and the court has sustained' the contention of the trustees.
Did the testator intend that the charges for carrying the Williamsbridge property until it could be sold, as he evi*59dently intended that it should, should be paid out of the income which he had provided for the support of his wife, so that she should be left without income for her support ? I do not think he did. It is undoubtedly the rule that “ interest on mortgages, taxes, repairs, and all those current expenses which are fairly incidental to the maintenance of the realty used by a life tenant, are payable by him; ” and that rule should be “ adhered to upon all occasions, unless, in so doing, we violate a plain direction to the contrary; which, if not found in the will in so many words, yet is the only one which a fair and reasonable construction permits of our finding.” (Matter of Albertson, 113 N. Y. 434.) But where the testator manifests the contrary intention it must govern. (Matter of Tracy, 179 N. Y. 501; Clarice v. Clarice, 145 id. 476.)
This property, however, does come within this rule, for it was evidently not the • intention of the testator that it was to go to the trustees as part of the trust. Its disposition was specifically' provided for by the 3d clause of the will. If. all sold before his death, $100,000, or one-fourth of the net proceeds of the part sold, if only a part was sold, was to be paid to his son. As to that portion of the proceeds which was to be paid to his son, it was not, and never would, be a part of the trust estate. The testator evidently understood that this Williamsbridge property would not produce any income; that if he did not sell it during his life his trustees would, and that the proceeds would be disposed of as he directed — that is, one-quarter to his son, and the remaining three-quarters to become part of the residuary estate. It was clearly not anticipated that the period before the sale of the property would be so long that the question as to how the taxes should be provided for would be serious, and so the property was left in a class by itself, the taxes and carrying charges to he paid from the proceeds of the sale when made. Considering the careful provisions in the will by which the whole income of his property should be assured to the testator’s widow, and to his son after her death, without deduction for the so-called “ sinking fund ” or to make up any deficiency, and the separate disposition that he makes of the proceeds of this Williamsbridge property when sold, they seem to me to carry the conviction that it was not the intention that *60this farm until sold should be a part of the trust property, so that the cost of carrying it should be paid oub of income of the property which was to be devoted to the support and maintenance of his wife; and I think it will best carry out the expressed intention of the testator by providing that these taxes shall be paid out of the principal of the estate.
The judgment should, therefore, be modified as hereinbefore indicated, with costs to all parties payable out of the estate.
Laughlin, J., concurred.
Judgment and order affirmed, with costs.