(dissenting):
By the trust agreement the settlor of the trust assigned and transferred to the trustee specified bonds of the aggregate par value of $408,000, upon all but one class of which interest at specified rates became due and payable semi-annually on January first and July first and upon one class of which, aggregating $70,000, interest became due and payable annually on the first of July. In the trust agreement immediately following the enumeration of the bonds the trustee was directed to.collect the interest and to pay the same "as and when *405received ” to the father of the settlor during his life and upon his death to the mother of the settlor, if surviving, during her life. The father of the settlor died on the 22d of May, 1917, and the mother of the settlor survived him. The point presented for decision is whether there must be an apportionment between the mother of the settlor and the personal representative of the father of the interest which accrued on these bonds between the 1st day of January and the 1st day of July, 1917, or whether the construction of the trust agreement recognized and acted upon by the trustee in the first instance, to the effect that the mother of the settlor is entitled to all of such interest, was the proper construction. I am unable to agree with the views expressed by Mr. Justice Dowling that the construction so heretofore given and acted upon by the trustee would be in violation of section 16 of the Personal Property Law (as amd. by Laws of 1915, chap. 670) and void as constituting an accumulation of income forbidden by subdivision 3 of said section. Technically speaking it is true, as stated in United States Trust Co. v. Tobias (21 Abb. N. C. 392) and Matter of Lamb (182 App. Div. 180), that income from personal property accumulates from day to day, and, therefore, in the absence of a direction to the contrary in a will, deed or other instrument creating a trust, there should be an apportionment of such income as of the date -of the death of the life beneficiary thereof. I do not understand, however, that either the statute or the general rule to which reference has been made precludes the settlor of a trust from giving to one life beneficiary under circumstances such as are here presented the interest that falls due and becomes payable on specified securities during the life of such beneficiary, and to another the interest falling due and becoming payable thereon after the death of the first beneficiary, even though it represents income accruing in part but not becoming due or payable during the life of the former beneficiary. There is in such case no direction for the unlawful accumulation of income. I know of no decision in which it has been held that there can be a direction for the accumulation of income in violation of the statute before the income has become due and payable. If there were any doubt on that point I think it has been removed by the Legislature itself by recog*406nizing in section 2674 of the Code of Civil Procedure, in effect that the person creating a trust may provide that there shall be no apportionment in such cases. The section after prescribing the general rule for apportionment, which would be applicable were it not for the provisions of the deed of trust by which the settlor only gave the first life beneficiary the interest falling due and payable during the life of such beneficiary, expressly provides .that the provisions of the section “ shall not apply to any case in which it shall be expressly stipulated that no apportionment be made, or to any sums made payable in policies of insurance of any description.” It is not necessary to bring the case within the exception prescribed in that section that the precise phraseology of the section should be.followed; it is sufficient, I think, if it plainly appears that the settlor or testator intended that there should not be any apportionment; and in the case at bar such intent is manifest, for the corpus of the trust consisted of municipal bonds, the interest upon which he expected would be promptly paid, and for that reason no significance is to be attached to the direction that the beneficiary was to have the interest when received by the trustee, because in the circumstances he recognized no interval between the date the interest became due and the time it would-be paid to the trustee. He was not providing for the estate of the life beneficiary. His only concern was for the life beneficiary, and on that theory he gave the first beneficiary only the interest falling due and payable during his life. I, therefore, vote for reversal.
Judgment affirmed, with costs to all parties appearing on this appeal payable out of the trust estate.