Estate of Morton B. Harper, Deceased, Michael A. Harper, Executor - Page 35

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               Furthermore, the fact that the contemporaneous check                   
          register labels various disbursements to the Trust a “return of             
          capital”, regardless of whether such are proper under the                   
          Agreement and/or should be otherwise classified, also supports              
          the clear implication that Michael understood decedent’s capital            
          could and would be made available to him if necessary.                      
          Additionally, Michael even liquidated an M.L. Stern & Co. money             
          market account and renegotiated the Marsh note in order to obtain           
          the requisite cash to enable the Trust to pay decedent’s estate             
          taxes.  These facets, in turn, provide strong evidence of an                
          implied agreement under which decedent did not divest himself               
          economically of the contributed assets.                                     
               The estate also argues that the distributions to the Trust             
          were consistent with the guaranteed payment obligation.                     
          Nonetheless, without regard once again to the veracity of this              
          allegation, we find it of little import in our analysis.  The               
          record supports a conclusion that in making the payments Michael            
          was motivated by concern not with meeting HFLP’s guaranteed                 
          payment obligation but rather with facilitating underlying                  
          partner expenditures.  Michael testified as follows on this                 
               Q    Did you regularly pay the guaranteed payments to                  
               your father during 1994?                                               
               A    Payments were made, yes.                                          
               Q    Were they made regularly?                                         

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