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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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