- 40 -
follows, the commission explicitly recommended rejection of
the fairly representative approach and recommended adoption
of the aggregate approach.
The representative rule, it is submitted,
runs counter to the testator's intention * * *
Under this rule, the executor, in his effort to
avoid liquidation of assets, would be required
to give the spouse a proportionate share of
the entire appreciation, if any, in the estate.
This, certainly, was not the testator's purpose
when he selected a pecuniary form for the
bequest. Had it been so, the fractional
formulation would have been the appropriate
means to insure that result.
* * * * * * *
It is recommended that legislation be
enacted providing in substance that, in the
absence of a contrary provision in the will,
where a pecuniary bequest is made for the
benefit of the testator's surviving spouse which
qualifies for the estate tax marital deduction,
and the executor is given discretionary power to
distribute assets in kind at their estate tax
values, then if such power is exercised the
executor must distribute to the spouse assets
having an aggregate value on the date of
distribution not less than the amount of such
pecuniary bequest allowed as a marital deduction.
It shall further be the fiduciary's duty, under
such circumstances, to endeavor, within reason,
not to distribute assets to the spouse worth
substantially more than that amount at date of
distribution. [Fourth Report of the Temporary
State Commission on the Modernization, Revision
and Simplification of the Law of Estates to the
Governor and the Legislature (Fourth Report of
the Temporary State Commission), N.Y. Legislative
Document 1965, No. 19, Report No. 5.4.2A, pp.
326-327; emphasis added.]
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