
    In the Matter of the Application of The City of New York, Appellant, Relative to Acquiring Title, etc., for the Opening and Extending of the Approaches to the Bridge over the Spuyten Duyvil and Port Morris Railroad on the Line of Depot Place at Highbridge, in the Twenty-third Ward, in the Borough of the Bronx, City of New York. Edwin B. Sheldon, as Administrator with the Will Annexed, and as Trustee to Execute the Unexecuted Trust under the Will of William B. Ogden, Deceased, Respondent.
    First Department,
    May 5, 1911.
    Will construed — trust with devise of corpus to beneficiaries — eminent domain —when award should be paid to devisees rather than to trustee.
    Where a will devised lands in trust during the lives of two persons in being, income payable to certain named beneficiaries, and, on the death of the two persons upon whose lives the trust was limited, the testator gave the income then held by the trustee together with the land itself to the beneficiaries under the trust so that they “shall receive and become vested with the estate and property out of which such income arose in the same relative shares and proportions in which they were entitled to said income,” the persons to whom the corpus was devised on the expiration of the trust took a vested estate in possession at . the termination thereof.
    Hence, where a city took title to the lands by condemnation after the expiration of the trust the award should be paid to the devisees rather ■ than to the trustee.
    Appeal by the petitioner, The City of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of February, 1908, confirming the report of the commissioners of estimate and assessment herein.
    
      Joel J. Squier of counsel [Edward F. Reynolds with him on the brief], Archibald R. Watson, Corporation Counsel, for the appellant.
    
      John C. Shaw, for the respondent.
    
      Walter Shaw Brewster, Charles P. Howland,- Willard P. Butler of counsel, for certain beneficiaries and devisees under the will of William B. Ogden, filing a brief by leave of the court.
   Clarke, J.:

We have carefully examined the record, and find no grounds ' therein to disturb the conclusions of the commissioners of estimate and .assessment so far as the amount of then award for damages is concerned, and in that regard the order confirming ■ their report is affirmed.

A serious question is presented upon the appeal by the city and upon the brief filed by certain of the beneficiaries and devisees under the last will and testament of William B- Ogden, deceased, as to the person or persons to whom the award should' (have been made. The property affected belonged in his lifetime to William B. Ogden, who died in August, 18W He left a will devising and bequeathing to his executors and trustees all his residuary estate in trust during a period, not exceeding two lives then in being, namely, the lives of Marianna A. Ogden and Edwin H. Shebion, and directed them to pay over the rents, issues,, profits arid income thereof in certain specified, portions to some sixteen or seventeen beneficiaries. The will further provided: “From and after the decease of my said wife, Marianna A. Ogden, arid'my said brother-in-law Edwin H. Sheldon, being the two lives now in being by which the right of my said Executors and. Trustees to collect and receive the rents, issues and profits of my estate are limited, I give, devise and bequeath all and singular the real" and personal estate of which my said Executors and Trustees shall theretofore have received the rents, issues and profits, and all the rest, residue and remainder of my property and estate, whatsoever and wheresoever, not herein otherwise specifically devised or bequéathed, in, to and amongst the beneficiaries under the trusts created by this will, in such manner that the parties theretofore receiving the income only shall receive and become vested with the ■ estate and property out of which such income arose iri the same .relative shares and. proportions in which they were entitled to said income, viz., * *

The will was duly probated and the executors and trustees entered upon the performance of their duty. All of the executors named, in the will are dead. Edwin H. Sheldon died December 20, 1890, and Mrs. Ogden died September 28, 1904. So that the two lives upon which the continuance of the trust depended terminated on that day. Thereafter Edwin B. Sheldon was appointed administrator with the will annexed, and by order of the Supreme Court, dated January 6, 1905,- he was appointed to execute the trusts unexecuted of the will of William B. Ogden, deceased.

These proceedings were initiated -under a resolution of the board of estimate and apportionment adopted March 3, 1905, and title vested in the city on the 1st of March, 1906. The claim was filed by the estate of 'William B. Ogden, deceased, which was represented by Mr. Shaw throughout the hearing. After the testimony had been concluded, certain attorneys, . representing two-thirds of the heirs of the estate of William B. Ogden,- deceased, appeared before the commissioners and objected to the award being made to Edwin B. Sheldon as administrator with the will annexed and as trustee, and claimed that the award should be made to the heirs of the estate of William B. Ogden, deceased. The commissioners, nevertheless, made the award to Sheldon, and said disposition was affirmed by the Special Term.

At the time this proceeding was initiated, and so at the time title vested in the city, the two lives upon Which the trust had been limited had terminated. The will of Mr. Ogden has been heretofore before the courts. In Butler v. Green (65 Hun, 99) it was held that there was no equitable conversion of the real into personal property. In Ogden v. Ogden (40 Misc. Rep. 473) Mr. Justice Leventritt said that “Frequent rereadings of the entire will have only strengthened the conclusion derived from, the first cursory perusal that each of the sixteen named beneficiaries, who survived the testator, took absolutely vested interests both in principal and income, indefeasible, descendible, devisable and alienable. ”

It would seem, therefore, that upon the death of Mrs. Ogden the real estate under consideration in the matter at bar vested in possession in the heirs and devisees and continued so vested until title passed to the city March 1, 1906. The right to the award became fixed upon that date and was a personal right in the then owners of the property, the amount, however, to be ascertained upon the confirmation of the report.

We aré of opinion, therefore, that the award was improperly made to Mr. Sheldon as administrator and trustee, and while confirmed in other respects, that the report should be returned to the commissioners with instructions to make the award-to unknown owners.

It follows, therefore, that .the order appealed, from should be modified by affirming the report, of the .commissioners so far as the amount of the award is concerned, and returning the same to the former commissioners with instructions to make the award to unknown owñérs, without costs to any party upon this appeal.

Ingraham, P. J., Laughlin, ■ Scott and Miller, JJ., • concurred. ' ' . ■

Order modified by affirming report as to amount of award, and returning same tot commissioners to make award to unknown owners, ■ without costs to any party on this appeal. Settle order on notice.  