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to allocate appreciation where marital trust was not funded
for more than 25 years). As noted above, New York provides
other avenues of relief for aggrieved beneficiaries,
including actions for removal and surcharge of fiduciaries.
See, e.g., In re Van Bokkelen's Estate, 33 N.E.2d 87 (N.Y.
1941); In re Epstein, 557 N.Y.S.2d 907, 910 (App. Div.
1990); In re Birnbaum, 555 N.Y.S.2d 982, 991 (App. Div.
1990); In re Lirakis, 491 N.Y.S.2d 36 (App. Div. 1985);
Velez v. Feinstein, 451 N.Y.S.2d 110, 114 (App. Div. 1982).
Given Mr. de St. Aubin's intent and the law of
the State of New York, we hold that decedent's estate had
no claim to appreciation on the undistributed assets in her
husband's estate.
III. Right To Compel Funding of the Marital Trust With
Interest at the Legal Rate
Petitioners move for a ruling that "Neither Honore nor
the Estate [of Honore] had a claim under EPTL to compel
funding of her pecuniary [marital] trust with interest at
the legal rate." Petitioners base their argument on an
assertion that EPTL section 11-1.5 is inapplicable to
pecuniary legacies in trust. Petitioners contend that the
statute only applies to outright general legacies.
Petitioners argue that decedent and her estate were
entitled to only the average rate of net income earned by
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