1588                              LAWS OF MARYLAND                       [CH. 918

CHAPTER 918
(House Bill 109)

AN ACT to add new Section 392 to Article 93 of the Annotated Code
of Maryland (1964 Replacement Volume), title "Testamentary
Law," subtitle "Wills," to follow immediately after Section 391
thereof, amending the Testamentary Law of this State with partic-
ular reference to a fiduciary and to the manner of selecting assets
for distribution.

Whereas, the Internal Revenue Service of the United States has
ruled that the marital deduction provided by the Internal Revenue
Code may not be allowed to a decedent's estate if there is some un-
certainty as to the ultimate distribution to be made to or for the bene-
fit of the surviving spouse under circumstances where the will or other
governing instrument provides that the fiduciary may satisfy be-
quests, devises or transfers in kind with assets at their value as
finally determined for federal estate tax purposes; and

Whereas, in view of the aforesaid Ruling of the Internal Revenue
Service it is believed desirable that the General Assembly of Mary-
land by statute affirmatively declare the long-existing case law of
Maryland which is that, unless otherwise specifically directed in the
will or other controlling instrument, a fiduciary, when selecting assets
for distribution in kind of satisfaction of such bequests, devises or
transfers, shall do so in a manner which is fairly representative of
appreciation and depreciation in the value of such assets as of the
time of actual distribution, now, therefore,

Section 1. Be it enacted by the General Assembly of Maryland,
That new Section 392 be and it is hereby added to Article 93 of the
Annotated Code of Maryland (1957 Edition), title "Testamentary
Law", subtitle "Wills", to follow immediately after Section 391 there-
of and to read as follows:

392.

(a) Whenever a fiduciary, by the specific provisions of a will or
other governing instrument, is authorized to satisfy a bequest, devise
or transfer by selection and distribution of assets in kind, and the will
or other governing instrument further provides that the value of
the assets to be so distributed shall be determined by reference to
their value for purposes of payment of federal estate taxes, the
fiduciary, unless the will or other governing instrument otherwise
specifically directs, shall distribute such assets, including cash, in a
manner fairly representative of appreciation or depreciation (since
the date of determination of such valuation) in the value of all prop-
erty thus available for distribution in satisfaction of such bequest,
devise or transfer.

(B) THE PROVISIONS OF THIS SECTION SHALL NOT AP-
PLY TO ANY BEQUEST, DEVISE OR TRANSFER WHERE,
UNDER THE PROVISIONS OF THE WILL OR OTHER GOVERN-
ING INSTRUMENT, IT IS CLEAR THAT THE FIDUCIARY,
IN ORDER TO SATISFY SUCH BEQUEST, DEVISE OR