Estate of Honore V. De St. Aubin, Deceased, Ovide E. De St. Aubin, Executor, et al. - Page 24

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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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