First Department, July, 1921.

[Vol. 197

The case of Ross v. John Hancock Mutual Life Ins. Co. (222 Mass. 560; cited with approval, 229 N. Y. 494) is quite similar to the instant case. An employee of the defendant, working on the tenth floor, during the lunch period entered the elevator for the purpose of delivering a Christmas present to another employee on the ninth floor. While she was in the act of getting off, the elevator started and she was fatally injured. The elevator was owned and operated by the defendant and the building was occupied also by others as tenants. The court held the action maintainable, saying: "Plainly the fact that the plaintiff's intestate was in the general employ of the defendant is not decisive. In this building, occupied by many tenants, she might ride in the elevator in pursuance of her work for the defendant, or she might ride entirely on her own business as a passenger * * Outside of her working hours, however, she had the same right to use the elevator as any of the general public. During the luncheon period her time was her own." (p. 561.)

From these decisions it follows, in my opinion, that we should hold that at the time that the injury happened to this plaintiff she was on the elevator, not as an employee of the defendant, but as one having the same rights as the general public, and the dangers to which she was thus exposed did not arise out of nor were they incidental to her employment, but were such as were common to all passengers on elevators; that she was not engaged at the time of the injury in the work of her employment, and the injury did not arise out of her employment. Therefore, she was not within the Workmen's Compensation Law and could maintain the action.

The verdict of the jury as to the defendant's negligence and the plaintiff's freedom from contributory negligence was fully warranted.

Judgment and order reversed, with costs, and complaint dismissed, with costs.

App. Div. 391]

First Department, July, 1921.

THE EQUITABLE TRUST COMPANY OF NEW YORK, Successor by Merger to the VAN NORDEN TRUST COMPANY, as Trustee under a Certain Deed of Trust Dated March 11, 1907, between ATHOL MORTON MILLER and THE VAN NORDEN TRUST COMPANY, Respondent, v. ANNIE E. MILLER, Appellant, Impleaded with UNITED STATES TRUST COMPANY OF NEW YORK, as Executor, etc., of ANDREAS M. MILLER, Deceased, and Others, Defendants.

Trusts

First Department, July 1, 1921.

trust to pay interest as and when received" to beneficiary and on his death to third person interest accrued but not matured on death of first beneficiary goes to his estate construction that accrued interest payable to second beneficiary would make instrument void under provisions of Personal Property Law, § 16, against accumulations - construction rendering instrument valid rather than void preferred.

Under a trust agreement placing certain municipal bonds in trust for the benefit of the father of the settlor during his life and upon his death for the benefit of the mother of the settlor, which directed the trustee to collect the interest and pay the same as and when received" to the father of the settlor during his life, and on the death of the father to the mother, all interest, which had accrued on the death of the father, though not matured at that time, passes to the father's estate.

To construe the trust agreement to require the payment to the mother of interest accrued at the time of the death of the father, but not then matured, would make the trust instrument void, inasmuch as it would provide for an accumulation prohibited by section 16 of the Personal Property Law.

Since the provisions of the trust instrument are capable of two constructions, the court will adopt the construction which renders the trust legal and operative, rather than the one which will render it void. LAUGHLIN, J., dissents, with opinion.

APPEAL by the defendant, Annie E. Miller, from a judginent of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of November, 1920, upon the decision of the court, rendered after a trial at the New York Special Term, directing that plaintiff pay to the United States Trust Company of New

First Department, July, 1921.

[Vol. 197 York, as executor of the last will and testament of Andreas M. Miller, deceased, the sum of $7,871.54, out of the balance of income remaining in its hands as shown on its accounting and that plaintiff is entitled to reimburse itself as trustee for the amount of such payment out of any income subsequently accruing on said trust fund.

Stephen O. Lockwood of counsel [Lockwood & Lockwood, attorneys], for the appellant.

Franklin P. Ferguson of counsel [Arthur A. Gammell with him on the brief; Murray, Prentice & Aldrich, attorneys], for the respondent.

DOWLING, J.:

On or about the 11th day of March, 1907, Athol Morton Miller, then residing in the city of Duluth, State of Minnesota, made and entered into a certain agreement or deed of trust with the Van Norden Trust Company, a corporation duly organized and existing under the laws of the State of New York, having its office and principal place of business in the city and county of New York, whereby he transferred, assigned and set over unto the Van Norden Trust Company, its successors and assigns, certain personal property more particularly described in said deed of trust, to have and to hold the same for the uses and purposes expressed in said deed of trust, and to collect and receive the interest, income and profit of said trust fund, and to pay said interest, income and profit as and when received to Andreas M. Miller, father of said Athol Morton Miller, during his life, and upon his death, to Annie E. Miller, mother of said Athol Morton Miller, during her life, and upon the death of the survivor, to assign, transfer and pay over the principal of said trust to said Athol Morton Miller, if he was then living, and if he should not be living, then as otherwise provided and set forth in said agreement.

The Van Norden Trust Company duly accepted the trust and received securities and personal property comprising the principal of said trust fund of the face value of $408,000. It continued to perform the duties of trustee until September

App. Div. 391]

First Department, July, 1921.

25, 1910, when its name was duly changed by order of the Supreme Court, New York county, to the Madison Trust Company.

The Madison Trust Company continued to perform the duties of trustee under said deed of trust until June 1, 1911, when it was duly merged into the Equitable Trust Company of New York, under and pursuant to the Banking Law of the State of New York, and the Equitable Trust Company of New York has since continued to perform the duties of trustee under said deed of trust.

The bonds which constituted the principal of the fund under said agreement were given outright by Andreas M. Miller to his son, Athol Morton Miller, who transferred and delivered the same to the Van Norden Trust Company.

Subsequently Andreas M. Miller executed and delivered three certain voluntary trust agreements with the United States Trust Company of New York, one of securities of the par value of $700,000 for the benefit of his daughter, Maren Louise Miller Fellowes; the second of securities of the par value of $336,373.32 for the benefit of his son, Athol Morton Miller, or his issue; and the third of securities of the par value of $600,000 for his own benefit for life with remainder on his death to the city of Duluth, Minn., to establish a hospital and dispensary. The securities placed in trust under these agreements constituted the larger part of his possessions.

Said son and daughter were the only children of said Andreas M. Miller. Andreas M. Miller and his wife, Annie E. Miller, were, at the time of the execution of said agreement with the Van Norden Trust Company, living apart, he living in the city of New York and she in the city of Duluth, Minn.

The purpose of said Andreas M. Miller in the creation of those trusts was to dispose of the greater part of his property in such a manner as to provide for his children and to provide as well for the support of himself and his wife. At the time the deed of trust to the Van Norden Trust Company was made he declared that it was a trust practically for his wife; that he wanted the income reserved for himself while he lived, but that on his death he wanted everything to go to her that he personally did not get; that he wanted the income to go to himself during life because he thought it was safer;

First Department, July, 1921.

[Vol. 197

but when he was through with it he wanted it to go to the people for whom it was intended.

The income of the said several trusts with the United States Trust Company of New York was payable to the beneficiaries therein named, and the income of the bonds transferred to the Van Norden Trust Company under said agreement was directed to be paid to Andreas M. Miller, as and when received, during his life, and to be paid to Annie E. Miller as and when received thereafter during her life, should she survive him.

The trust agreement made with the Van Norden Trust Company contains no power of sale or disposition and contains only the power to reinvest in the event of maturity and payment of the principal of the bonds passing to the trustee under said agreement; and then only to invest in securities of the same character and description, i. e., municipal bonds of like character. All of the said bonds provided for payment of semi-annual interest payments, except one issue which provided for annual payments thereof.

During his lifetime Andreas M. Miller provided for the maintenance and support of his wife.

The trustee under the trust agreement dated March 11, 1907, held all the said bonds during the lifetime of Andreas M. Miller, except only $25,000 of the Kansas City Judgment four and one-halves which were paid off in July, 1915, and the proceeds invested in the purchase of Dayton, O., Water Works four and one-half per cent bonds bearing interest payable semi-annually, and managed the trust fund and received the income therefrom and paid over the same as and when received to Andreas M. Miller during his lifetime in accordance with the provisions of the deed of trust.

Andreas M. Miller died on May 22, 1917, leaving a last will and testament which was admitted to probate by the Surrogate's Court, county of New York, on the 25th day of July, 1917, and letters testamentary were issued thereon to the United States Trust Company of New York, which duly qualified and is now acting as such. By his will he gave to his daughter all of his property, which was of the value of about $70,000 exclusive of the amount claimed in this action. Sometime prior to his death Andreas M. Miller wrote a