- 48 - "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 (refusingPage: Previous 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 Next
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