In re the Application By the Department of Public Parks

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 R. 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 acquired 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 Rew 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.

In Ford v. Livingston, 70 Hun, 176 (headnote); 54 St. Rep. 164 , 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 so 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 ór lunatic, or if the land is subject to a settlement, the moneys 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.