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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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