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Because the bequest is for a sum certain, it constitutes
a pecuniary bequest. Because the will gave the executors
discretion to satisfy the bequest in cash or in kind and
directed that the aggregate approach be used, it is a
hybrid pecuniary bequest with a floor. The dispute
concerns whether other terms of the will, general State
fiduciary rules, or the behavior of the executors compels
use of the fairly representative approach, contrary to
Mr. de St. Aubin's explicit instructions.
Petitioners argue that EPTL section 2-1.9 prohibited
the executors from distributing appreciated assets to the
marital trust. They contend that general State fiduciary
rules do not overrule that specific provision. Petitioners
further contend that the type of bequest that Mr. de St.
Aubin used to fund the marital trust clearly indicates that
he intended petitioner to have no claim to any appreciation
on the undistributed assets of the estate. They argue that
nothing in his overall estate plan, as determined by a
reading of his entire will, dictates a different result.
Lastly, they assert that the behavior of the executors has
no effect on the legally required method of funding the
marital trust.
Respondent argues that petitioners are not entitled to
summary judgment on this issue. First, respondent asserts
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