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Marsman v. Nasca - 30 Mass. App. Ct. 789, 573 N.E.2d 1025 (1991)


Even where the only direction to the trustee is that he shall in his discretion pay such portion of the principal as he shall deem advisable, the discretion is not absolute. Prudence and reasonableness, not caprice or careless good nature, much less a desire on the part of the trustee to be relieved from trouble furnish the standard of conduct. There is a duty of inquiry into the needs of the beneficiary from the requirement that the trustee's power must be exercised with that soundness of judgment which follows from a due appreciation of trust responsibility


Appellant trustee had the power under a testamentary trust to pay the principal to a beneficiary for his support and maintenance. Aside from one payment, the trustee never made any payments to the beneficiary and, as a result, the beneficiary had to convey his house. After the beneficiary's death, appellee executrix filed an action to recover amounts that should have been paid during the beneficiary's lifetime. The probate court found in favor of the executrix, and ordered the conveyance of the house to be set aside. The trustee appealed.


Did the trustee fail in his duties to provide support and maintenance to the beneficiary?




The court agreed with the probate court's finding but disagreed as to the remedy. The court found that the trustee failed in his duty of inquiry into the needs of the beneficiary. The court determined, however, that the proper remedy was not to set aside the conveyance but to determine the amounts which should have been paid to the beneficiary to enable him to keep the house, and to pay that amount from the trust to the beneficiary's estate. The court also found that the exculpatory clause, which had been drafted by the trustee, was effective and thus the trustee would not be personally charged. The court affirmed the denial of attorney fees to the executrix as within the discretion of the probate court.

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