## Facts

- Morris Feldstein died owning a condominium that became part of a testamentary trust created by his will.
- Feldstein’s will named an executrix who also served as trustee of the estate/trust (trustee).
- The trust instrument contained an exculpatory provision stating that the trustee would be absolved from liability for delaying the sale of the condominium.
- The trustee did not sell the condominium until about four years after Feldstein’s death.
- During that four-year period, the trustee did not rent the condominium, and the property generated no income.
- The trust beneficiaries sued the trustee, alleging a breach of fiduciary duty based on the failure to obtain income for the trust by renting the condominium.
- The trustee argued that (1) the exculpatory provision protected her from liability and (2) the beneficiaries lacked standing to sue.
- The trial court surcharged the trustee about $8,200, reflecting the income the trust should have received from renting the condominium.
- The trustee appealed.

## Issues

1. Whether the beneficiaries of a testamentary trust have standing to sue the trustee for breach of fiduciary duty based on management of trust property.
2. Whether a clause absolving the trustee from liability for “delaying the sale” of the condominium also bars liability for failing to rent the condominium and earn income during the delay.

## Decision

- The court upheld the surcharge against the trustee for failing to rent the condominium during the period in which she delayed sale.
- The beneficiaries were permitted to pursue a claim against the trustee for alleged breach of fiduciary duty.
- The exculpatory provision concerning delay in sale did not protect the trustee from liability for leaving the property unproductive by not renting it.

## Legal Principles

- Trust beneficiaries may bring an action against a trustee to address alleged breach of fiduciary duties in the administration of trust property.
- Exculpatory provisions are read narrowly; protection from liability for one identified act (delay in selling an asset) does not automatically excuse other acts or omissions in managing the same asset.
- A trustee has a duty to manage trust assets with reasonable care, which includes seeking reasonable income from trust property when consistent with the trust’s administration.
- When a trustee’s failure to make an asset productive causes loss to the trust, a surcharge may be based on the income that should reasonably have been earned, such as fair rental value.

## Conclusion

In *In re Estate of Feldstein*, the court sustained a surcharge against a trustee who left a trust condominium vacant and unrented for roughly four years while delaying its sale, holding that beneficiaries had standing to sue and that an exculpatory clause excusing delay in sale did not excuse the trustee’s separate duty to seek reasonable income from the property.


In re Estate of Feldstein, 292 So. 2d 404 (1974)