
    The City of Brooklyn, Plaintiff, v. Benjamin H. Seaman et al., Defendants.
    (Supreme Court, Kings Special Term,
    February, 1900.)
    1. Suspension of power of alienation.
    Where a husband and wife, after reserving to themselves life estates in certain land, create a trust therein for the life of their son, with remainder to his heirs in fee, the trust is void as it is possible that the power of alienation may be required to be suspended during three lives.
    2. Bequest — Construction.
    A bequest to the son of “ the use during his natural life, and to his heirs, the one equal one-fourth (%) part ” of the remainder of a residuary estate of whatsoever kind or nature, gives to him only a life estate and gives the fee to his heirs.
    3. Life estate — Construction.
    Where the other heirs and the said son subsequently convey a piece of land, belonging to the residuary estate, to his children subject to his “ life use and occupation ”, he does not take a life estate in the whole as it must be considered that reference is made only to his existing life estate in the quarter.
    4. Eminent domain — Passage of title in Brooklyn.
    The mere making of a report, by commissioners appointed to condemn lands in the city of Brooklyn, does not divest the title of the owners and, therefore, where they convey before confirmation, the award is to be treated as realty and not as personalty.
    
      Petition by Valentine Smith for the determination of conflicting claims to a fund in court, being an award for land taken by the city of Brooklyn by eminent domain proceedings. The sixth clause of Joseph Carman’s will, referred to in the opinion, is as follows: “ I give and bequeath to my son John Carman, the use during his natural life, and to his heirs, the one equal one-fourth (¿) part of all the remainder and residue of my estate and property of whatsoever kind or nature ”.
    John Z. Lott, for petitioner.
    Thomas Young, opposed.
   Gaynor, J.:

Joseph Carman, the owner, and Eliza his wife, reserving a life estate to themselves and their survivor by the terms of the conveyance, conveyed the land for which the award was made to Elizabeth Carman, wife of John Carman, their son, in trust to her and her successors to receive the rents and profits thereof and apply them to the use of the said John Carman during his life, and upon his death to convey the land to his heirs in fee.

If the said trust is valid, the said fund is now subject to it for the life of the said beneficiary, both of the said grantors, Joseph and Eliza Carman, being dead; and upon his death the said fund goes to his heirs. The conveyance creating the trust reserved a life estate for the lives of the two grantors. Its further expressed purpose was on their death to hold the land in trust during the life of the beneficiary, John Carman, and make it inalienable until his death. This purpose contemplated and, if necessary, required, the suspension of the absolute power of alienation for three lives in being at the time of the execution and delivery of the conveyance, and was therefore void. It could be correctly said that if the beneficiary should die before the expiration of the life estate of the two grantors, the suspension would be for only two lives. But that is not the test. That there may need to be a suspension for more than two lives in a given case in order to carry out the scheme is the test (Chaplin on Susp. of Power of Al; Haynes v. Sherman, 117 N. Y. 433).

The said conveyance in trusteeing void, it follows that Joseph Carman died seized of the land, and we have to ascertain to whom it went on his death. He died testate before the condemnation proceedings were begun, leaving his said son and three daughters as his heirs. By the 3rd, 4th and 5th clauses of his will he left one undivided fourth of his property to each of his daughters “ and her heirs forever”, following the same form in making each devise; and then, varying the form, he left “ to my son John O arman, the use during his natural life, and to his heirs”, the other undivided fourth. This is of peculiar structure; hut I do not see any meaning that can he given to the words “ and to his heirs ”, except that they give the fee to the said heirs; and that seems to have been the meaning intended by the testator. By the will of Joseph Carman, therefore, the land for which the fund in court was paid went in fee one undivided fourth to each of the said three daughters and one "undivided fourth to the heirs of the said son, as tenants in common, subject to a life estate of the said son in an undivided fourth of it.

But thereafter the said daughters and son made a conveyance of the said land to the heirs of the said son, i. e. his six children; but 4C subject to the life use or occupation of John Carman, one of the parties of the first part ”. This did not convey any life estate to the said son John Carman, there being no such words of conveyance, but only had reference to and reserved his said life estate by the said will of his father in one undivided fourth of it. One of the said grantees has since died unmarried and intestate. It follows that the said fund belongs to the heirs of the said son, subject to his life estate in one fourth of it.

The said conveyance to the children of the said John Carman was made after the commissioners in the condemnation proceedings had made their report, but before it was confirmed. The mere making of the report did not divest the owners of the fee (Brooklyn charter, Laws 1888, chap. 583, title 15, sec. 14): The claim of the petitioner, as administrator of his wife, one of the said grantors, and who has since died, that the fund is to be distributed as personalty is therefore unfounded.

Let such an order be entered.  