- 31 - 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 onPage: Previous 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 Next
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