
    JULIA RHINELANDER DODGE and GEORGE J, GREENFIELD, as Trustees Under the Last Will and Testament of PHILIP R. PAULDING, Deceased, Appellants, v. MARY L. GALLATIN, BARTHOLOMEW DONEGAN and JAMES REILLY, Respondents.
    
      Equitable estate in real propei'ty — when a devise of the testator’s residuary estate will convey a legal title acquired after the execution of the will.
    
    In 1797 Frederick Rhinelander applied to the corporation of the city of New York for a grant of lands under water abutting upon his upland. The common council directed the grant to be made, but the clerk of the board neglected to deliver the written grant.
    In 1798 the legislature, on petition of the city, passed a statute granting riparian owners the fee simple of lands under water, abutting upon their uplands to be filled in by them. Frederick Rhinelander improved and filled in file land to West street, and in 1805 died intestate. His widow and daughter released and conveyed to his remaining child, William Rhinelander, Jr., all their interest, legal and equitable, in this property, and he entered into possession of the premises, and in 1807 renewed the application to the common council and asked that the grant should be delivered to him. The grant was accordingly executed - and delivered to him on November 16, 1807.
    By his will, executed in February, 1807, William Rhinelander, Jr., in terms devised the residuary estate of which he was seized or possessed at the time of making such will, or of which he should be seized or possessed at the time of his death, to an ancestor of the defendants.
    In this action, brought to recover the premises in question, the plaintiffs claimed that the property conveyed by the city of New York to William Rhinelander, Jr., was acquired by him after the execution and publication of his will, and that, under the laws then existing, it passed to his heirs-at-law and not to his devisee, under whom the defendants claimed title to the property.
    
      .Held, that at the time of making his will the testator had an equitable estate in the premises which passed by his will, and that the claim of the plaintiffs that William Rhinelander, Jr., having died prior to the revision of the statutes in 1830, died intestate as to these premises, was untenable.
    Appeal by tbe plaintiffs from a judgment entered upon tbe report of a referee, in tbe office of tbe clerk of tbe city and county of New York on September 26, 1887, adjudging that tbe complaint herein be dismissed on tbe merits of tbe action. Tbe action was brought to recover from tbe defendants tbe possession of lands known as Nos. 229 and 230 West street, between Beach street and North Moore street, in tbe city of New York.
    
      
      William, G. Bussey and Edward Stevens, for the appellants.
    
      Henry H Anderson, for tlie respondents.
   Macomber, J.:

Tlie plaintiffs seek to recover the possession of the property in question as the heirs-at-law of William Rhinelander, Jr., who died in the city of New York in the year 1809.

The defendants claim the right to withhold the possession of tin's property by virtue of the last will and testament of the same William Rhinelander, Jr., which was executed on the 3d day of February, 1807. The foundation of the legal demand made by the plaintiffs is the allegation and contention that the property in question was acquired by William Rhinelander, Jr., after the execution and publication of Ms will, and hence that it passed to his heirs-at-law, and not to his devisees. Though the will did, in precise terms, attempt to devise not only the lands which the testator then owned and possessed, but all which he should thereafter acquire, yet the property embraced in this action, if acquired subsequently, would be divided among the heirs-at-law under the laws as they stood prior to the revision of the statutes in the year 1830. (Lynes v. Townsend, 33 N. Y., 561.) The deed from the city of New York to WiMam Rhinelander, Jr., was executed on the 16th day of November, in the year 1807. If this deed were the beginning of the title or right of possession in William Rhinelander, Jr., the contention in behalf of the plaintiffs would, in the absence of other defenses, undoubtedly prevail.

The principal question, therefore, is, had the defendants’ testator, at the time that he made the will (February 3, 1807), any title or right of possession to these lands? It is to be observed that the deed from the city of New York to William Rhinelander, Jr., among other things, confirms unto the said party of the second part, in his actual possession now being, and to his heirs and assigns the lands in question. This was a clear admission, on the part of the city of New York, that William Rhinelander, Jr., had been in possession of the premises for some length of time prior to the execution of this deed. Did he have, at the time the will was made, an eqMtable estate in the premises ? If he had, such estate, whatever it was, passed by tbe t§rms of Ms will and lias been acqmred by the defendants.

In May, 1797, Frederick Rhinelander, the father of William Rhinelander, Jr., was an abutting owner of the premises in suit; being such, he applied to the corporation of the city of New York for a grant of these lands which were under water. His petition was referred to the street committee of the common council; they reported May 29, 1797, that the grant ought to be made and the common council directed it to be made. The clerk of the board, however, neglected to deliver the written grant. In 1798 the legislature, on petition of the city, passed a statute granting riparian owners the fee simple of lands to be filled in by them. Frederick Rhinelander went on to and improved the property under the terms of the city grant of 1797 and the legisla^ tive grant of 1798, and, at great expense, filled in the land from high-water mark east of Washington street to West street. In the year 1805, while in the actual possession of the premises and exercising ownership and control over them, he died intestate. His widow released her dower to the son, William Rhinelander, Jr., and her daughter Maria .subsequently conveyed to the son William Rhinelander, Jr., all her interest, legal and eqmtable, in the property of her father. Hence it will be seen that William Rhine-lander, Jr., had come into possession of this property in the year 1805. He was knowing to the previous application of his father, as riparian owner, to the use of these lands under water. He renewed the application to the common council early in the year 1807, setting forth in his petition the well-established facts of his father’s previous application and the resolution of the common council acceding to his prayer, and asking that the grant should be delivered to him as the sole riparian owner. This was accordingly done on the 16th day of November, 1808, by the deed above mentioned.

As the referee has properly found, both under the Dongan charter ..of 1686 and the Montgomerie charter of 1730, the fee of the land under water abutting the upland, for a distance of 400 feet beyond low-water mark of the Hudson river, was vested in the mayor, aldermen and commonalty of the city of New York, and that the corporation of the city of New York uniformly made grants of the land under water, owned by it, to tbe riparian owners abutting such land under water.

Tbe resolution of the common council, in the year 1797, above mentioned, granting to Frederick Rhinelander the land under water mentionéd in his application, was sufficient to give him an equitable estate in the lands, if followed by an acceptance of the same and an expenditure of moneys by him, acting upon' the faith thereof and relying thereon. That the city agreed to make the grant and proposed to charge for that part of it lying between high and low-water marks, the sum of £4:00, New York money, or $1,000, its equivalent; and that the part beyond low-water mark was to be given on reservation of the usual quit rents, is abundantly established by the evidence in the case. It follows, therefore, that the claim of the plaintiffs that William Rhinelander, Jr., died intestate as to these premises, is untenable, and the referee was correct in dismissing their complaint.

The judgment should be affirmed, with costs.

Yan Brunt, P. J., and Brady, J., concurred.

Judgment affirmed, with costs.  