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MATTER OF LUCKENBACH

281 A.D. 595 (1953)

In the Matter of the Accounting of Edgar F. Luckenbach, as Trustee under The Will of Lewis Luckenbach, Deceased. Phillip Barnett et al., as Assignees and Trustees of Lewis Luckenbach, Appellants; Edgar F. Luckenbach, Jr., et al., Respondents

Appellate Division of the Supreme Court of the State of New York, Second Department.

May 4, 1953.

Attorney(s) appearing for the Case

Edward W. Bourne, James D. Ewing, Francis A. McGrath, Eugene Z. Du Bose and J. Kenneth Campbell for appellants.

Robert W. Owens, Jr. for Edgar F. Luckenbach, Jr., respondent.

Harold M. Kennedy for Roscoe H. Hupper, respondent.

ADEL, MacCRATE and BELDOCK, JJ., concur in Per Curiam opinion; NOLAN, P. J., dissents in part in an opinion, in which WENZEL, J., concurs.

Per Curiam.

The facts are fairly stated in the dissenting opinion.

The weight of the evidence establishes that the trust is entitled to a share of the business rather than fractional interests in specific ships. The deceased trustee might have kept trust affairs and accounts in such shape as to justify application of the "fractional interest" theory, but the fact is that he did not do so. He kept no trust accounts...

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