Estate of Honore V. De St. Aubin, Deceased, Ovide E. De St. Aubin, Executor, et al. - Page 27

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             argues that "the executors of Ovide's Estate have failed                 
             to honor Ovide's intent in administering his estate and                  
             thereby have breached their fiduciary obligations.                       
             Respondent posits that factual issues exist regarding the                
             executors' intention to deprive Honore of the beneficial                 
             enjoyment required by the statute".  Respondent further                  
             asserts that the executors could have made an interim                    
             accounting of Mr. de St. Aubin's estate but chose not to do              
             so.  Respondent contends that such an interim accounting                 
             would have exempted the estate from the application of the               
             amended version of EPTL section 11-2.1(k) but cites no                   
             controlling authority.  In addition, respondent states:                  

                  Petitioners appear to take the untenable position                   
                  that even if it is determined that those                            
                  administering Ovide's Estate breached their duty                    
                  to the income beneficiary, and that the Modern                      
                  Globe stock should have been converted or made                      
                  income producing at an earlier date, there is no                    
                  remedy available to the income beneficiary                          
                  because the amended statute applies.                                

                  We reject respondent's argument.  The legislature                   
             supplied a clear effective date for the amended statute.                 
             Further, respondent concedes that New York does not require              
             interim accountings.  In addition, respondent has presented              
             this Court with no precedent from New York or from any                   
             other jurisdiction to support the argument that we may and               
             should supply an alternative effective date for the State                




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