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discretion on the trustee. Petitioner also cites section
16040(a) of the California Probate Code, which requires a
trustee to administer the trust:
with the care, skill, prudence, and diligence
under the circumstances then prevailing that a
prudent person acting in a like capacity and
familiar with such matters would use in the
conduct of an enterprise of like character and
with like aims to accomplish purposes of the
trust as determined from the trust instrument.
Petitioner's argument is based upon a misreading of
the Estate of Ellingson case. In that case, the settlor's
estate plan provided for the creation of a "Marital
Deduction Trust" upon his death under which his surviving
spouse received the "entire net income" of the trust for
her life. However, the trust agreement contained a proviso
under which the trustees, one of whom was the surviving
spouse, were authorized to accumulate income in excess of
"the amount which the Trustee deems to be necessary for
* * * [the surviving spouse's] needs, best interests and
welfare". Estate of Ellingson v. Commissioner, supra at
960.
The Court of Appeals found, on the basis of a fully
stipulated record, that the settlor intended the trust
property to constitute QTIP and to qualify for the marital
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