Estate of Honore V. De St. Aubin, Deceased, Ovide E. De St. Aubin, Executor, et al. - Page 48

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             "Distributions in kind by executors and trustees" and not                
             only to distributions to spouses.  In addition, EPTL                     
             section 2-1.9(b)(2) provides the following ceiling on the                
             value of pecuniary bequests, including hybrid pecuniary                  
             bequests:                                                                

                  the assets selected by the fiduciary for that                       
                  purpose, together with any cash distributed,                        
                  shall have an aggregate value on the dates of                       
                  their distribution amounting to no less than,                       
                  and to the extent practicable no more than,                         
                  the amount of such testamentary disposition or                      
                  transfer in trust as stated in , or determined                      
                  by the formula stated in, the instrument.                           

             This valuation ceiling is clearly directed at vitiating the              
             In re Bush's Will result.                                                
                  Before concluding, we briefly address respondent's                  
             remaining alternative arguments.  Respondent argues that                 
             the marital trust is entitled to share in the appreciation               
             of the estate assets because:  (1) The executors'                        
             discretion was "nullified by the executors' failure to                   
             expeditiously and properly administer the estate", and (2)               
             the delay in funding the marital trust violated "the spirit              
             of the marital deduction".  Petitioners deny any wrongdoing              
             by the executors.  However, even assuming that the                       
             executors did act improperly, respondent has failed to                   
             show why the appropriate remedy would be a share of                      
             appreciation.  See Estate of Lasser, supra at 15 (refusing               




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