
    Katherine C. Morris, Respondent, v. The City of New York, Appellant.
    Third Department,
    December 30, 1912.
    Municipal corporations — city of New York — acquisition of lands for water supply — action to recover award — title to lands taken — trust — suspension of power of alienation — when award not to be paid into court.
    In an action brought to recover the amount of an award made by commissioners of appraisal, pursuant to chapter 724 of the Laws of 1905, for lands acquired by the city of New York in connection with the water supply, the question arose as to whether the plaintiff, at the time of the vesting of the title to the land in the. city of New York, had title to a portion of the lands taken.
    One M. left the real property in question in trust for the benefit of his children, with power in the trustee to sell the same. The trust unlawfully suspended the power of alienation. The trustee conveyed said lands to plaintiff’s grantor and subsequently the children of M., who were his only heirs at law, conveyed said parcel to plaintiff’s grantor by deed, in which they ratified the conveyance by the trustee, and in which the wives of the heirs at law, who were married, and the widow of M. joined. ' '
    
      Held, that, since the trust was invalid, the title to the property upon, the death of M. vested in his heirs at law and the deed given by them to plaintiff’s grantor vested a good title in him and in the plaintiff;
    That, as upon the hearing before the commissioners no claim of ownership of the land or right to the award was made by any person other than the plaintiff,- the defendant was not justified in paying the award into court, and that a judgment in favor of the plaintiff for the amount of the award, with interest, should be affirmed.
    Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Otsego on the 26th day of July, 1912, upon the decision of the court rendered after a trial at the Otsego Special Term.
    
      Archibald R. Watson [Frank T. Fitzgerald of counsel], for the appellant.
    
      Merritt Bridges [Wirt Howe of counsel], for the respondent.
   Lyon, J.:

This action "was brought to recover the amount of an award made by the commissioners of appraisal for about 182 acres of land situated in the county of Westchester, acquired by the city of New York in connection with the Kensico reservoir, pursuant to the provisions of chapter 724 of the Laws of 1905, and amendatory and supplemental acts, relating to providing an additional supply of pure and wholesome water for the use of the city of New York.

The important question at issue is whether the plaintiff at the time of the vesting of title thereof in the city of New York, January 26, 1909, had title in fee simple to a tract of 79 acres, constituting a part of the 182 acres, the title to the remaining 103 acres concededly being in plaintiff. The title of plaintiff to the 79-acre tract is dependent upon the validity of the title obtained by Louis Prigge, her grantor, under conveyance made to him by the Frankford Real Estate, Trust and Safe Deposit Company of Philadelphia, Penn., and by the widow and heirs • at law of Edward H. Middleton of that city.

Concededly Edward H. Middleton was seized in fee simple of the seventy-nine-acre parcel. He died in 1905, leaving a will which was duly probated in the State of Pennsylvania the same year, and of which an exemplified copy was recorded in the surrogate’s office of Wéstchester county, N. Y., in July, 1906.

The testator, after making certain specific gifts, devised and bequeathed all the residue and remainder of his property to said trust and safe deposit company, its successors and assigns, in trust to keep invested his personal estate, “ and to pay over and distribute the net income received from both real and personal estate amongst my seven children for and. during the terms of their respective natural lives in the following proportions,” which he states shall be one-seventh thereof to each of his seven children but “subject to the deduction hereinafter stated ” as to three of the children, as to whom he directs that his trustees shall deduct from the capital of the share of which the income is given, the sum of $2,500 as to two of his children and $5,000 as to the third, “the income of which is to be equally added to and divided amongst the shares of my other six children,” exclusive of one or two who. are named. The will then provides: “ And I further trust from and immediately after the respective deaths of any of my children in Trust to pay and distribute the capital of the share of which the child- so dying received the income in his or her lifetime in such manner as said child shall appoint and direct by his or her last will and testament, and in default thereof to pay over and distribute said share to the lineal descendants of such deceased child per stirpes; and iii case any and so often as any of my children shall die without leaving such lineal descendants surviving such decedent then in Trust 'to hold the said share o'f the child so dying for the surviving brothers and sisters (the issue of any" deceased brothers and sisters to take per stirpes) upon the same trust as the original shares herein devised and bequeathed to my Trustees for the benefit of said surviving brothers and sisters, and with the same force and effect as if the said accrued shares had been one of the original shares so devised and bequeathed.” The will empowered. the trustee and its successors and assigns to sell and convey any and all of the testator’s real estate.

In July, 1906, said trustee by full covenant deed conveyed to Louis Prigge said seventy-nine-acre parcel, and in September, 1906, the said seven children of Edward H. Middleton, who constituted his only heirs at' law, also conveyed said parcel to said Prigge by deed, in which they ratified and confirmed said conveyance by said trustee, and in which the wives of the heirs at law who were married and the widow of Edward H. Middleton joined.

The 5th clause óf the will was clearly invalid, as unlawfully suspending the power of alienation for the term of more than two lives in being at the creation of the estate. In determining as to the validity of this clause of the will, the court could not consider the possibility of the estates attempted to be created terminating within the prescribed period. As was said in Matter of Wilcox (194 N. Y. 288, 295): “ ‘ In determining the validity of limitations of estates, under the "above statutes (the provisions of the Revised Statutes in reference to absolute ownership and restraint of alienation), it is not sufficient that the estates attempted to 'be created may, by the happening of subsequent events, be terminated within the prescribed period,. if such events might so happen that such estates might extend beyond such period. In other words, to render such future estates valid, they must be so limited that in every possible contingency they will absolutely terminate at such period, or such estates will be held void.’ ”

The 5th clause of the will being invalid, the title to the seventy-nine-acre parcel vested upon the death of Edward H. Middleton in-his heirs at law, and the said deed given by them to Prigge in September, 1906, vested a good title in him. However, the defendant in its reply brief briefly states that the real issue involved upon this appeal is not whether the trust sought to be created by the Middleton will is valid or invalid, but whether the notice of the conveyance by the trust and safe deposit company, in violation of section 156 of the Banking Law as it existed in 1905 (Gen. Laws, chap. 37 [Laws of 1892, chap. 689], § 156, as amd. by Laws of 1904, chap. 492), did not make it imperative for the defendant for its own protection to pay this money into the trust company designated by the court. Section 18 of chapter 724 of the Laws of 1905 provided that the city of New York might pay an award into such trust company as the court may in the order of confirmation direct “where there are adverse or conflicting claims to the moneys awarded as compensation,” and the order confirming the report of the commissioners of appraisal granted in March, 1910, provided: “And where there are adverse or conflicting claims to the amounts awarded * * "" the said Comptroller * * shall pay the sum so mentioned in said report, payable to said owner * * * into the Bockland County Trust Company * * *, to the credit of such parcel and subject to the further order of this court. ” Upon the hearing before the commissioners no claim of ownership of the land or of right to the award was made by any person other than plaintiff, nor was any adverse claim thereto made upon the trial of this action in.June, 1912, nor so far as the record discloses at any time prior thereto. The commissioners reported that the plaintiff herein was the owner of the land and entitled to be paid the sum of $41,000 and the report was confirmed as above stated after hearing both parties hereto, and the order of confirmation has not been modified or reversed. The sole reason stated by the defendant in the. letter of August 26, 1911, for paying the award into court was the complicationswhieh had arisen in regard to the exception contained in the abstract of title.' It would seem to matter very little whether the said trust company, as executor or trustee, could legally execute a conveyance of lands situated within this State so long as the clause of the will under which the trust company and any successor must derive its power was invalid. The title of Prigge and hence of plaintiff as his grantee would seem to have been perfect. The trustee having received the purchase price and executed the conveyance neither it nor its cestuis que trust could have any claim upon the award, and the heirs at law in consideration of such payment by Prigge having conveyed said parcel and ratified and confirmed the said conveyance by said trust company could make no claim to the award. In view of these facts no person either as; a devisee under the will of Edward H. Middleton or as an heir at law could have had any right or interest in the award. Hence the defendant was not justified in paying the award into the trust company designated by the court, thereby subjecting the plaintiff to the expense and delay attending the prosecution of legal proceedings necessary to obtain the moneys, and to considerable loss of interest thereon. The Water Supply Act contemplated prompt payment of the award. Section IT of that act (as amd. by Laws of 1906, chap. 314). provided that the city of New York should within three calendar months after the confirmation of the report of the commissioners of appraisal make payment to the respective owners of the amount of the award with interest from the time of filing certified copies of the oath of office, at which date, January 26, 1909, the title had vested in the city of Hew York. That section also provided that in case of default or neglect in payment within the three months, the claimant after application first made by him to the comptroller of the city of Hew. York for the payment thereof, might sue for and recover the same with interest and costs, and that it should be sufficient to declare generally for so much money due to the plaintiff by virtue of said act, and that the report of the commissioners with proof of the right and title of the plaintiff to the sum demanded should be conclusive evidence in such suit or action. It was conceded upon the trial that demand for payment of the award to the plaintiff was made upon defendant June 22, August 17 and August 30, 1911. The defendant has raised no question as to the plaintiff’s title to any portion of the 182 acres taken excepting as to this 79-acre parcel.

I think that the judgment in favor of plaintiff for the amount of the award and interest should be affirmed.

Judgment unanimously affirmed, with costs.  