- 43 -
2-1.9(b)(2) imposes a ceiling as well as a floor on a
hybrid pecuniary bequest. E.g., Estate of Guterman, supra;
Estate of Goutmanovitch, supra. But see Estate of Lasser,
supra (honoring the ceiling supplied by EPTL section
2-1.9(k)(2)). However, the question of whether the
executors are authorized to distribute appreciated assets
is not before this Court. Rather, the issue at hand is
whether the executors are required to distribute such
assets.
After considering the language of EPTL section 2-1.9,
its legislative history, the case law, and the expert
commentary on this subject, we hold that New York law
directs use of the aggregate approach of funding hybrid
pecuniary bequests (unless the will or other governing
instrument expressly provides otherwise).
b. Intent
As stated above, the provisions of EPTL section
2-1.9(b)(2) apply "Unless the instrument expressly provides
otherwise". EPTL sec. 2-1.9(b). Petitioners argue that
Mr. de St. Aubin's intent is clearly consonant with the
application of EPTL section 2-1.9. They assert that the
choice of a hybrid pecuniary bequest with a floor indicates
that he did not wish to obligate the executors to distribute
to the marital trust a share of the appreciation of the
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