- 46 -
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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