
    (89 Hun, 529.)
    In re DEPARTMENT OF PUBLIC PARKS. In re SPROAT.
    (Supreme Court, General Term, First Department.
    October 18, 1895.)
    Guardian and Ward—Condemnation oe Land—Right to Award.
    An award made for land of an infant taken for a public use is real estate, and cannot be paid to an ancillary guardian of such ward.
    Application by the department of public parks to acquire title to real estate. Martha N. Sproat moves to confirm the report of the referee.
    Argued before VAN BRUNT, P. J., and O'BRIEN and FOLLETT, JJ.
    H. Kettell, for the motion.
    Charles A. O’Neil, opposed.
   O’BRIEN, J.

This is an application for an order for the payment of an award made to unknown owners, and comes before the court upon the report of a referee. The question presented is as to whether the award should be considered real estate or personal property. It appears that the petitioner, Martha N. Sproat, individually and as ancillary guardian of the property and infants, applies for payment of the award which was made to unknown owners. The city ac- ■ quired title to the land long after the death of the father of such infants, and at the time of taking such title the property was owned by the three children, subject to the dower rights of the widow. Letters of guardianship in the state of Ohio were issued to the petitioner, who there gave a bond, and ancillary letters of guardianship have been issued to her by the surrogate of New York county. The referee reports that the award made for the land should be paid to the petitioner by virtue of such ancillary letters of administration, while the city claims that the award should stand in the place of the land, and, being still real estate, should not be paid to the petitioner.

It has been held that the proceeds of real property sold by the court, belonging to lunatics or infants, will be considered real estate so long as the incompetency continues, and on the death of the lunatic or infant the money will go to his heirs. Horton v. McCoy, 47 N. Y. 21.

In Ford v. Livingston, 70 Hun, 176 (headnote), 24 N. Y. Supp. 412, it is held:

“Money paid by an elevated railroad company to the committee of a lunatic, in pursuance of the judgment of a court, as ‘fee damages,' and as the price of a conveyance of the easements appurtenant to the lunatic’s real estate taken by the railroad, is to be deemed real estate as long as the owner’s incompetency exists.”

And Mr. Pomeroy, in his work on Equity Jurisdiction (page 135, note to section 1167), says:

“When land has been taken, not by voluntary negotiation, but by compulsory proceedings authorized by statute, and the money paid into the court, it continues to be real estate until it is taken out by some one having the right to elect to treat it as money; that is, by some person sui juris who is an unfettered owner. If the owner is an infant or lunatic, or if the land is subject to a settlement, the money necessarily retains its character as real estate.”

Apart from this, however, we do not see by what right the award should be paid to the ancillary guardian, because she is not authorized to receive it. The authority conferred upon such a guardian by section 2840 of the Code of Civil Procedure only allows the person to whom such letters of guardianship are issued “to demand and receive the personal property and the rents and profits of the real property of the ward.” As the award, therefore, must be considered as real estate, and as the ancillary guardian has no title to the real property of the infants in the state of New York, she should not receive the award, but the same should be disposed of by this court, by directing its deposit in a trust company, there to remain during the minority of the infants, the income arising therefrom to be paid to the guardian.

Ordered accordingly. All concur.  