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pay a pecuniary marital legacy in cash. [Estate
of Goutmanovitch, supra at 774; emphasis added.]
In Estate of Lasser, N.Y.L.J., Nov. 20, 1987, p.15
(Sur. Ct.), again under circumstances similar to these
cases, the court stated:
perhaps the most important reason why the * * *
[In re Bush's Will line of cases] cannot be
considered as controlling authority here, is
the fact that the enactment of EPTL 2-1.9 * * *
represents a legislated rejection of the holdings
of those cases. * * *
* * * * * * *
It cannot be denied that the Legislature
was fully aware of * * * [In re Bush's Will and
its progeny] and determined that they should be
legislatively overruled. * * * Moreover, in
adopting the "aggregate" as opposed to
"representative" approach, the Legislature
obviously determined that the public policy of
this state did not support the conversion of
every pecuniary disposition into a fractional
one. [Id.]
See also Estate of Guterman, 476 N.Y.S.2d 1006, 1008 (Sur.
Ct. 1984) (allowing, but not requiring, distribution of
appreciation in case of a hybrid pecuniary bequest); Covey,
The Marital Deduction and the Use of Formula Provisions,
105-106.
In some cases, the State surrogate's court has
questioned or rejected the idea that EPTL section
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