Estate of Honore V. De St. Aubin, Deceased, Ovide E. De St. Aubin, Executor, et al. - Page 45

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             at the time of distribution to my said trustees shall be at              
             least equal to the amount of this bequest."  Mr. de St.                  
             Aubin further provided:  "My Executors, hereinafter named,               
             shall have the power and sole discretion to satisfy this                 
             bequest wholly or partly in cash or in kind and to select                
             the assets to be included therein".  Thus, he clearly chose              
             the aggregate approach of funding the marital trust, which               
             is the basis for EPTL section 2-1.9.                                     
                  We reject respondent's argument that Mr. de St.                     
             Aubin's intent to provide for decedent overrides his                     
             explicit instructions regarding the funding of the marital               
             trust.  We doubt whether such a general intent, if it did                
             exist, would be sufficient to satisfy the proviso that EPTL              
             section 2-1.9 will be applicable "unless the instrument                  
             expressly provides otherwise".  EPTL sec. 2-1.9(b).  In any              
             case, we find that Mr. de St. Aubin's will expresses no                  
             intent to require that decedent share in the appreciation                
             of the estate assets.                                                    
                  Mr. de St. Aubin could have chosen to bequeath his                  
             entire estate outright to decedent.  He also could have                  
             chosen to leave her a fractional bequest.  He did not                    
             choose to do so.  Mr. de St. Aubin provided for decedent by              
             making extensive specific bequests to her, which ensured                 
             that on his death in 1967, she would receive property with               





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