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and disbursements between income and corpus, the power
to apply the income or corpus for the benefit of the
spouse, and the power to retain the assets passing to
the trust. For example, a power to retain trust assets
which consist substantially of unproductive property
will not disqualify the interest if the applicable
rules for the administration of the trust require, or
permit the spouse to require, that the trustee either
make the property productive or convert it within a
reasonable time. Nor will such a power disqualify the
interest if the applicable rules for administration of
the trust require the trustee to use the degree of
judgment and care in the exercise of the power which a
prudent man would use if he were owner of the trust
assets. * * *
Georgia law then supplies the requisite limitations. The
Comment to Ga. Code Ann. section 53-12-190 indicates that
subsection (a) imposes the necessary duty of care and diligence:
Pursuant to subsection (a), a trustee is subject
to the duties the common law imposes on trustees, as
well as the duties expressly set forth in the Act. The
Committee deemed it unnecessary to catalog the duties
of a trustee because the common law has developed them
with admirable clarity. * * *
The common law duties referred to are set forth in
detail in the Restatement, Trusts, Second, �� 169-185.
These duties, and the duties set forth in the Act, may
be varied by the trust instrument, see � 53-12-5,
supra, except as otherwise provided by law, see, e.g.,
� 53-12-194 (a), infra, and unless the provision in the
trust instrument is violative of public policy. * * *
The duty of ordinary diligence, formerly codified at
OCGA � 53-13-51 and defined as “that degree of care
which is exercised by ordinarily prudent persons under
the same or similar circumstances” in OCGA � 51-1-2, is
now encompassed by � 53-12-190 (a). * * *
Included amongst the referenced common-law materials is 1
Restatement, Trusts 2d, section 174 (1959), which reads: “The
trustee is under a duty to the beneficiary in administering the
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