
    The Equitable Trust Company of New York, Successor to the Van Norden Trust Company, as Trustee under a Deed of Trust Executed by Athol M. Miller, Respondent, v. Annie E. Miller, Appellant, Impleaded with Others.
    
      Trust — accounting — deed of trust providing that income shall be paid to husband and after his death to wife — trustee may recover from wife amount of income accrued prior to death of husband and inadr vertently paid to her subsequently thereto — such income payable to executor of husband.
    
    
      Equitable Trust Co. of N. Y. v. Miller, 197 App. Div. 391, affirmed.
    
      (Argued May 1, 1922;
    decided May 31, 1922.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered August 29, 1921, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. Plaintiff brought this suit for an accounting by itself as trustee under a deed of trust in which is contained the direction by the settlor to it: “to pay said interest, income and profit, as and when received, to Andreas M. Miller * * * during his life and upon his death to Annie E. Miller * * * . during her life.” Andreas M. Miller died May 22, 1917. Thereafter and up to about July 1, 1917, plaintiff collected interest from the bonds held under the deed of trust, aggregating (less agreed commissions of one per cent) the sum of $8,494.10, the whole of which sum was paid over to Annie E. Miller, the second life tenant, at her demand. The proportionate amount of said income which had accrued up to May 22, 1917, amounted to (less commissions) the sum of $7,871.54, which sum defendant, the United States Trust Company, as executor of the last will and testament of Andreas M. Miller (the first life tenant), demanded from plaintiff, which demanded reimbursement from Annie E. Miller for the amount of such payment, and as the money was not forthcoming it subsequently withheld from said Annie E. Miller income thereafter received aggregating the sum improperly paid over to her as aforesaid. The trial court held that amount was rightfully withheld.
    
      Stephen 0. Lockwood for appellant.
    
      Winthrop W. Aldrich, Franklin P. Ferguson and Arthur A. Gammell for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: His cock, Ch. J., Hogan, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ.  