Estate of Honore V. De St. Aubin, Deceased, Ovide E. De St. Aubin, Executor, et al. - Page 31

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                  Before leaving this issue, we answer respondent's                   
             concern that our application of EPTL section 11-2.1(k)                   
             leaves an aggrieved income beneficiary without recourse                  
             against fiduciaries in breach of their duties.  New York                 
             has long allowed beneficiaries to recover their losses                   
             through actions for removal and surcharge of fiduciaries.                
             See, e.g., In re Van Bokkelen's Estate, 33 N.E.2d 87, 87                 
             (N.Y. 1941); In re Birnbaum, 555 N.Y.S.2d 982, 991 (App.                 
             Div. 1990); In re Epstein, 557 N.Y.S.2d 907, 910 (App. Div.              
             1990); In re Lirakis, 491 N.Y.S.2d 36, 36 (App. Div. 1985);              
             Velez v. Feinstein, 451 N.Y.S.2d 110, 114 (App. Div. 1982).              
                  In accordance with the above, we hold that, under EPTL              
             section 11-2.1, the inventory value of the stock is to be                
             determined as of Mr. de St. Aubin's date of death.                       
             Respondent has conceded that, under this interpretation                  
             of the law, decedent had no claim under EPTL section                     
             11-2.1(k).  Therefore, it is unnecessary to examine                      
             petitioners' argument regarding the relationship between                 
             EPTL section 11-2.1(k) and 11-2.1(e)(6).                                 

             II.  Claim for a Share of the Appreciation                               
                  Both parties move for summary judgment on the question              
             of whether decedent was entitled to share in the apprecia-               
             tion of the assets held in her husband's estate.  To                     
             analyze this issue effectively, it is necessary to focus on              




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