(concurring).
I agree that on this record we should say that Pinsky had in his hands the money which he took: his testimony is that he used only $600 or $700, and for the rest lived upon his father-in-law; certainly we may take him at his word. That being true, I cannot see how our decision in Danish v. Sofranski, 2 Cir., 93 F.2d 424, is material here; any comment upon it is inevitably obiter. But since my brothers think it desirable to overrule it, I wish to dissent pro tanto. That case was very deliberately considered, and the doctrine was not laid down by chance; in our judgment we were only following In re Schoenberg, 2 Cir., 70 F.2d 321, the doctrine of which we believed, as I still believe, was right. I think so because the trustee should always prove how much ■of his loot the respondent has still in his •control if he is to be compelled to disgorge. Everybody will, in form at least, agree so far; but an exception has grown up in cases where he denies that he ever had the money, and for this there is a good practical reason, since he cannot explain what he did with it, if he denies that he ever had it. Even so, as we said in Danish v. Sofranski, supra, there is a slip in the formal reasoning, because though we discredit the denial, we know that in fact the respondent has probably spent part of the money. That defect I am entirely willing to ignore, but I can see no excuse for extending it to cases where the respondent admits that he got the money but sets up a claim of right to it, as is the case here. This hiatus is said to be filled by a presumption and if there were ground for one I should agree. There is not; everybody knows that it is extravagantly improbable, at least when the theft is of money, that all of it remains unspent in the hands of such men. I agree that the respondent should be called upon to explain, but I deny that when he does not come forward to do so there is ground for presuming that he has kept all the money intact. That is so patently untrue that to base a presumption upon it violates my sense of due process of law. I would allow great latitude to a court in fixing the amount of the putative remainder,' but I would compel it to be fixed.