Estate of Honore V. De St. Aubin, Deceased, Ovide E. De St. Aubin, Executor, et al. - Page 43

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             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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