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question of Mr. de St. Aubin's intent is a factual question
that will require a hearing to resolve. Respondent further
asserts that the 1965 provision controls this question,
rather than the 1987 provision. Respondent contends
that the applicability of the 1965 provision in place
of the 1987 provision depends upon the manner in which
Mr. de St. Aubin's executors carried out their duties,
another subject of a factual dispute. Respondent asserts
that, under the 1965 provision, the Modern Globe stock was
underproductive property, and, therefore, a portion of the
proceeds from the sale of the Modern Globe assets should be
allocated to decedent as income beneficiary of both trusts.
Respondent further argues that even if the 1987 provision
applies, the "inventory value" of the Modern Globe stock
under that version of EPTL section 11-2.1(k) presents a
material question of fact. Finally, respondent contends
that EPTL section 11-2.1(e)(6) is compatible with, and does
not override, EPTL section 11-2.1(k).
We find it unnecessary to decide the question of
whether Mr. de St. Aubin intended to override the delayed
income provision because, even if EPTL section 11-2.1(k)
does apply to these cases, it requires no allocation of
profits from the sale of the Modern Globe assets to income.
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