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law regarding the attribution of appreciation among
competing bequests.
a. Evolution of New York Law and the Application of EPTL
Section 2-1.9
In re Bush's Will, 156 N.Y.S.2d 897 (App. Div. 1956),
affd. 145 N.E.2d 872 (N.Y. 1957), established the rule in
New York that executors have a duty of impartiality in
distributing appreciated assets in satisfaction of
competing bequests. In that case, the decedent bequeathed
one half of her adjusted gross estate to her husband and
the residuary of the estate in trust for the benefit of her
son. The subject will granted the surviving spouse, who
was also executor, authority to use his discretion in
making distributions in kind to satisfy the bequests. Id.
at 900. However, the court decided that the surviving
spouse, as executor, had a duty to select impartially the
assets to be distributed to each beneficiary. The court
stated:
The husband of the testatrix is
not only a beneficiary under the will
but is also executor thereof, and, as
such, is acting in a fiduciary capacity
as to everyone but himself. His
interest as beneficiary must not be
allowed to conflict with his duty as
executor. He may not, in distributing
stocks and bonds to himself in
satisfaction of his legacy or share,
make selections which are favorable to
himself and deliver to the trustee
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