- 34 -
or equal to the amount of the bequest. Use of the
aggregate approach results in a "hybrid pecuniary bequest
with a floor". Under the fairly representative approach,
the assets distributed in satisfaction of the bequest must
be fairly representative of appreciation or depreciation in
the value of all property available for distribution.
Therefore, use of the fairly representative approach
effectively transforms a hybrid pecuniary bequest into a
fractional bequest. See Estate of Goutmanovitch, supra
at 773; Covey, Marital Deductions and Credit Shelter
Dispositions and the Use of Formula Provisions, 90 (1984).
Article Sixth of Mr. de St. Aubin's will establishes
decedent's marital trust. The trust was to be funded with
an amount equal to 50 percent of the adjusted gross estate,
minus the value of other property passing to Honore under
the will or by operation of law. Article Sixth provides
for the selection and valuation of the assets used to fund
the marital trust as follows:
My executors * * * shall have the power and
sole discretion to satisfy this bequest wholly
or partly in cash or in kind and to select the
assets to be included therein, provided, however,
that all such assets included shall be valued at
the value thereof as finally determined for
Federal estate tax purposes, and that the total
value of such cash and/or property at the time
of distribution to my said trustees shall be at
least equal to the amount of this bequest.
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