Estate of Honore V. De St. Aubin, Deceased, Ovide E. De St. Aubin, Executor, et al. - Page 38

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                       securities which have not enhanced in                          
                       value in the same proportion as                                
                       those he receives. * * * The executor                          
                       must make distribution equitably and                           
                       fairly as between himself and the                              
                       trustee of the trust for the son.  [Id.                        
                       at 900.]                                                       

                  In re Bush's Will spawned a line of cases in which                  
             the New York State courts effectively converted hybrid                   
             pecuniary bequests into fractional bequests by requiring                 
             use of the fairly representative approach.  See In re                    
             McDonnell's Will, 263 N.Y.S.2d 653, 656 (Sur. Ct. 1965);                 
             In re Leonard's Will, 257 N.Y.S.2d 409, 411 (Sur. Ct.                    
             1965); In re Inman's Estate, 196 N.Y.S.2d 369, 371 (Sur.                 
             Ct. 1959).                                                               
                  However, in 1965, the line of cases propagated by                   
             In re Bush's Will was vitiated by the enactment of                       
             Personal Property Law 17-f, currently EPTL section 2-1.9                 
             (hereinafter collectively referred to as EPTL section                    
             2-1.9).  In EPTL section 2-1.9(b)(2), New York adopted the               
             aggregate approach of funding hybrid pecuniary bequests and              
             implicitly disfavored the fairly representative approach                 
             directed by In re Bush's Will.  EPTL section 2-1.9(b)(2)                 
             provides:                                                                

                  (b) Unless the instrument expressly provides                        
                  otherwise:                                                          
                            *   *   *   *   *   *   *                                 




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