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trust to exercise such care and skill as a man of ordinary
prudence would exercise in dealing with his own property”. In
addition, Ga. Code Ann. section 53-12-194(a) (1997) provides that
“No provision in a trust instrument is effective to relieve the
trustee of liability for breach of trust committed in bad faith
or intentionally or with reckless indifference to the interest of
the beneficiary”.
Based on these pronouncements, we believe that Georgia
courts would limit the trustee’s administrative powers to a
sufficient extent to prevent their jeopardizing the income
beneficiary’s interest. See also Rev. Rul. 69-56, 1969-1 C.B.
224; Rev. Rul. 66-39, 1966-1 C.B. 223 (each sanctioning similar
grants of trustee authority in a marital deduction context). We
also note that the above-described powers are set forth in Item
XII of the 1970 will and are applicable to “every trust” created
by the will. Accordingly, the trust terms grant to the trustee
such powers in managing both the Item IV and the Item V trusts.
Yet respondent has stipulated that the Item IV trust qualifies
for the marital deduction under section 2056(b)(5), which statute
contains an identical all income payable annually element.
Respondent has not, however, offered any evidence that the State
courts would impose reasonable limitations in the one context and
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