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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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