Estate of Honore V. De St. Aubin, Deceased, Ovide E. De St. Aubin, Executor, et al. - Page 40

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             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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