Estate of Honore V. De St. Aubin, Deceased, Ovide E. De St. Aubin, Executor, et al. - Page 37

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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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