
    Blaize L. Harsell and Grace E. Lewis, Plaintiffs, v. Charles DeKay Townsend, L. Bradford Prince et al., Defendants.
    (Supreme Court, New York Speeial Term,
    June, 1910.)
    Estoppel—Equitable estoppel and estoppel in pais — Facts creating estoppels —Acquiescence — Consents and permissions.
    Where remaindermen acquiesce in the payment to a life beneficiary of moneys which should have been applied to the payment of taxes and other like charges on the trust estate, they may not afterward on an accounting by the trustees charge them with the amount of such payments.
    Action to compel testamentary trustees to account.
    Robert B. Honeyman, for plaintiffs.
    Mortimer S. Brown, for defendant Townsend.
    Calvin D. Van Name, for defendant Prince.
   Gerard, J.

This is an action for an accounting. Letitia A. Poillon died in 1866, leaving her property, after a few bequests, to trustees in trust to pay the net income to her daughter Williemene B. Harsell during her life, and after her death to pay over the principal to her children in equal shares when they reached the age of twenty-one. Provision was made for the continuance of the trust during the minority of each child and in favor of the issue of deceased children. L. Bradford Prince and Charles DeKay Townsend eventually became the trustees. Mr. Townsend was the husband of the life tenant. The life tenant, by her first husband, Harsell, had four children, two of whom are the plaintiffs here. The claim is made by plaintiffs that the trustees paid over to their mother, the life tenant, sums from the income of the estate which should properly have been applied by the trustees to the payment of taxes, etc., on the real property forming part of the subject of the trust. The children were, however, all of full age at the time those payments were made to their mother, the life tenant. Kone of them were wprkers, and all of them received their principal support from their mother. The trustees claim that the children all, while of full age, knew of the payments by the trustees to their mother and acquiesced in the paying over to their mother of sums which properly should have been applied to the payment of taxes, etc., on the properties held in the trust. On this issue I find for the trustees. The alleged accounting referred to as binding the children was a proceeding instituted by the trustees for leave to mortgage real estate comprised in the trust. It does not bind the children, because at no place were the accounts of the trustees submitted or passed on. The plaintiffs are entitled to an accounting, hut on such accounting the trustees must not be charged with moneys paid from the income to their mother with their consent and knowledge.

Judgment accordingly.  