Estate of Morton B. Harper, Deceased, Michael A. Harper, Executor - Page 38

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          general partner, is a fiduciary and must act on behalf of the               
          Partnership and all of its partners and cannot favor any one of             
          them over any other of them.  He cannot make distributions to one           
          partner without making distributions to all partners and did not            
          do so.”  The record, on the other hand, shows a consistent                  
          pattern of acting in response to particular needs of decedent or            
          his estate.  We simply are unable to agree that Michael was                 
          acting in these instances first and foremost for the good of HFLP           
          and not primarily as the son of his father.                                 
               Lastly, we focus on testamentary characteristics of the                
          partnership arrangement.  According to the estate:                          
                    It is clear from the record that the organization                 
               of the Partnership and the contribution by the Trust of                
               the Portfolio to the Partnership’s capital was not                     
               “testamentary.”  No part of such transaction was                       
               intended to be effective at the time of Morton’s death.                
               The terms and conditions of the Partnership Agreement                  
               and the funding of the Portfolio were complete and                     
               unconditional and changed the relationship of the                      
               parties to the Portfolio assets. * * *                                 
          While we acknowledge that HFLP did come into existence prior to             
          decedent’s death and that some change ensued in the formal                  
          relationship of those involved to the assets, we are satisfied              
          that any practical effect during decedent’s life was minimal.               
          Rather, the partnership served primarily as an alternate vehicle            
          through which decedent would provide for his children at his                

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