- 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.]Page: Previous 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 Next
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