Estate of Henry A. Lassiter, deceased, Paula Ann Masters Lassiter, administrator, C.T.A. - Page 44

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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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