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Neither respondent nor this Court has located any
case law arising after the effective date of EPTL section
2-1.9 that follows the In re Bush's Will precedent of
requiring the transformation of an aggregate method of
funding into a fairly representative approach. See In
re McDonnell's Will, supra at 657 (declining to consider
the retroactive implications of EPTL section 2-1.9).
In fact, the case law in this area following the
enactment of EPTL section 2-1.9 clearly rejects the In
re Bush's Will precedent. Estate of Goutmanovitch, 432
N.Y.S.2d 768 (Sur. Ct. 1980) is the case most factually
similar to the current cases. In Estate of Goutmanovitch,
the widow of the testator was to receive a hybrid pecuniary
bequest with a floor in an amount equal to one half of the
adjusted gross estate reduced by the aggregate value of any
property passing to her outside of the will. The court
rejected the assertion that the widow had a claim to a
share of the appreciation of the assets of the estate. The
court reasoned that EPTL section 2-1.9 "adopted the
aggregate approach, rather than the Bush rule". Id. at
774. The court further explained that:
Under the aggregate approach the fiduciary is
clearly relieved of the duty of impartiality with
regard to the distribution of appreciation and is
authorized, certainly in the case of a simple
provision for payment at estate tax values, to
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