- 37 - 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 trusteePage: Previous 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 Next
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