Estate of Honore V. De St. Aubin, Deceased, Ovide E. De St. Aubin, Executor, et al. - Page 46

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             a value of almost $400,000.  Further, it would be                        
             reasonable to assume that Mr. de St. Aubin knew that                     
             decedent owned an additional $100,000 of insurance in his                
             life.  He also made her income beneficiary of both the                   
             marital trust and the residuary trust.  Finally, he                      
             authorized the invasion of the principal of the residuary                
             trust for her benefit.  We find no evidence in the record                
             to challenge the meaning of the explicit language in                     
             Mr. de St. Aubin's will.                                                 

             C. Alternative Arguments                                                 
                  Respondent argues that the marital trust is entitled                
             to share in the appreciation of the estate assets because,               
             under New York State law, executors have a duty to                       
             distribute assets impartially among beneficiaries.  In                   
             support of this argument, respondent again cites In re                   
             Bush's Will and its progeny.  However, as discussed above,               
             the In re Bush's Will line of cases was vitiated by EPTL                 
             section 2-1.9.  See Estate of Goutmanovitch, 432 N.Y.S.2d                
             768, 774 (Sur. Ct. 1980); Estate of Lasser, N.Y.L.J.,                    
             Nov. 20, 1987, p. 15 (Sur. Ct.).  That statute was created               
             to overrule the In re Bush's Will line of cases.  See                    
             Fourth Report of the Temporary State Commission, N.Y.                    
             Legislative Document 1965, No. 19, Report No. 5.4.2A,                    
             p. 326 (stating that the In re Bush's Will result,                       




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