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principal, pursuant to Mr. de St. Aubin's will. In the
alternative, petitioners argue that if the will does not
control the allocation of the sales proceeds from the
Modern Globe assets, the amended, 1987 version of EPTL
section 11-2.1(k) (the 1987 provision) applies, rather than
the version in effect at the time of decedent's death (the
1965 provision). However, petitioners argue that the
Modern Globe stock was not underproductive within the
meaning of either version of EPTL section 11-2.1(k), and,
therefore, application of the statute would not affect the
allocation of the proceeds from the sale of the Modern
Globe assets. As a final alternative, petitioners argue
that the delayed income provision does not apply in any
event because EPTL section 11-2.1(e)(6) (McKinney 1967),
which requires that proceeds from liquidation of stock be
allocated to principal, is applicable and overrides EPTL
section 11-2.1(k).
Respondent argues that summary judgment is not
warranted because there are unresolved, material questions
of fact that will affect the resolution of this issue.
Respondent argues that EPTL section 11-2.1(k) applies
because Mr. de St. Aubin's will and his overall estate plan
indicate no clear and explicit intent to override the
delayed income provision. Respondent contends that the
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