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 after the year 1914, and thereafter commingled trust and personal assets without means of separate identification. His acts and statements, together with the testator’s will and the other evidence, indicate overwhelmingly that the trust is entitled to a share in the business as such.
The evidence establishes that as of December 31, 1918, the trust was entitled to an interest of 13.608% in the business; the net worth of the enterprise being $18,327,726.84 and the trust’s share therein being $2,494,082.87. The trust interest in the business was peculiar, however, in that it could not grow by any increments to income, the deceased trustee being entitled to the income as an individual. Stated another way, the interest of the trust was entitled to grow by means of every increment to the business other than increments to income. For the purposes of computation, the assets of the business, as of April 26, 1943, must be reduced by $15,896,165.80 before the interest of the trust is applied. This amount represents depreciation reserves, taken out of income which, under the terms of the will, was the property of the trustee as an individual. The trust remaindermen are entitled, at their option, to shares of stock in the corporation which holds the commingled assets, but only after such assets have been reduced, as stated above, for purposes of computation.
*597We are aware that such amount of stock may not provide as much to appellants as do the accounts in suit which are acquiesced in by the other two remaindermen and by the respondent fiduciary. Nevertheless, appellants at their option have the right to the stock as representing the form in which trust assets have been found.
Specific arguments on appeal are disposed of as follows: (1) The further account and supplemental account substantially comply with the decrees which ordered their filing, excepting “ Statement B ”, and the respondent fiduciary has established the deceased trustee’s personal interest in the business; (2) appellants are entitled to receive shares of stock in lieu of cash, at their option; (3) the trust is not entitled to 58.46% of the stock; (4) the amounts in the depreciation reserve account are properly credited to the deceased trustee personally; (5) “ Statement B ” of the further account is largely arbitrary insofar as it purports to allocate funds to reinvestments; (6) the further account does not adequately treat capital gains and losses in respect of the trust’s interests in vessels actually disposed of, but such deficiencies are more than offset by amortizations; (7) the failure to account for good will is immaterial; (8) the failure to account for subsidiaries is immaterial; (9) there has been no irretrievable election by appellants to receive cash in lieu of shares of stock, and (10) there was no acquiescence and laches by appellants’ assignor which estops appellants.
The decree, insofar as appeal is taken, should be affirmed, with costs to all parties filing briefs payable out of the estate, unless within thirty days after the date hereof appellants stipulate, in writing, to return to the respondent fiduciary, within sixty days after entry of the order hereon, all moneys heretofore received on account of the trust remainder, without interest, and to accept 4.536% of the shares of stock of the Luckenbach Steamship Co., Inc., to be considered issued as of April 26,1943, and the said stock to be applicable to the assets of the said corporation, as of April 26, 1943, after they have been considered reduced by $15,896,165.80. In the event such stipulation be filed, as aforesaid, the decree, insofar as appeal is taken, should be reversed on the law and the facts, with costs to all parties filing briefs, payable out of the estate, and the matter remitted to the Surrogate’s Court to enter a decree not inconsistent herewith. In the event of such reversal, findings of fact and conclusions of law inconsistent herewith should be reversed and new findings and conclusions should be made as stated herein.