- 47 -
"certainly, was not the testator's purpose when he selected
a pecuniary form for the bequest. Had it been so, the
fractional formulation would have been the appropriate
means to insure that result.").
Respondent has presented no evidence that the In re
Bush's Will duty impartially to allocate assets survives
the imposition of EPTL section 2-1.9 (except where the
will by its terms requires impartial allocation). In fact,
the cases explicitly state that the Bush approach has been
legislatively overruled. See Estate of Goutmanovitch,
supra at 774 ("This statute adopted the aggregate approach,
rather than the Bush rule * * * whenever a pecuniary
disposition requires the fiduciary to value the assets
distributed as of a date other than the date of
distribution"); Estate of Lasser, supra at 15 ("[the]
enactment of EPTL 2-1.9 * * * represents a legislative
rejection of [Bush]").
It is true, as respondent points out, that the
catalyst for the passage of EPTL section 2-1.9 was the
desire to protect residents of New York from loss of the
marital deduction under Rev. Proc. 64-19, 1964-1 C.B.
(Part 1) 682. However, EPTL section 2-1.9 clearly did more
than protect estates from loss of the marital deduction.
We note that EPTL section 2-1.9 applies generally to
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