Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-6-1995

Robertson vs. Center Jersey
Precedential or Non-Precedential:

Docket 94-5010




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                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ___________

                            No. 94-5010
                            ___________

                        MELISSA ROBERTSON,
                                                  Appellant

                                 v.

            THE CENTRAL JERSEY BANK & TRUST COMPANY,
 JOHN DOES, Officers and Directors of the Central Jersey Bank,
       and others whose identities are presently unknown,
                                             Appellees

                            ___________

          Appeal from the United States District Court
                 for the District of New Jersey
              (D.C. Civil Action No. 91-cv-03383)

                            ___________

                      Argued:   August 10, 1994

        PRESENT:   HUTCHINSON and NYGAARD, Circuit Judges,
                     and KATZ, District Judge*

                      (Filed February 6, 1995)

                            ____________


Robert B. Reed, Esquire                    (Argued)
Donald F. Scholl, Jr. Esquire
Reed & Scholl
31 Highway 12
Flemington, NJ 08822
               Attorneys for Appellant

Michael J. Canning, Esquire                (Argued)
Paul V. Fernicola, Esquire
Giordano, Halleran & Ciesla
125 Half Mile Road
P.O. Box 190
Middletown, NJ 07748
               Attorneys for Appellees
_______________

*   Hon. Marvin Katz, United States District Judge for the Eastern
    District of Pennsylvania, sitting by designation.
                             ____________

                       OPINION OF THE COURT
                           ____________


HUTCHINSON, Circuit Judge.



          Appellant, Melissa L. Robertson ("Robertson" or

"Beneficiary"), appeals an order of the United States District

Court for the District of New Jersey granting summary judgment to

appellee, The Central Jersey Bank and Trust Company ("Bank" or

"Trustee").   Robertson is the beneficiary of a testamentary trust

that names the Bank as trustee.    She asserts that the district

court erred in holding that a will provision authorizing the Bank

to retain its own stock protected it from liability for failure

to diversify trust assets when she failed to show that the

Trustee acted either "recklessly or in disregard of [its]

fiduciary duty of loyalty."    Robertson v. The Central Jersey Bank
and Trust Company, No. 91-3383, slip op. at 11 (D.N.J. Dec. 9,

1993).   Robertson also contends that the district court erred
when it held that she could not recover against the Bank for

alleged mismanagement of the testator's estate prior to

August 12, 1988, the date on which the Superior Court of New

Jersey, Law Division, Probate Part ("Probate Court") approved the

Bank's account of its administration of the testator's estate.

           We hold that the district court erred when it granted

the Trustee summary judgment on Robertson's claim that the

Trustee violated its fiduciary duty of care by keeping as much as

95% of the trust assets invested in the Trustee's own corporate
stock.    We also believe the district court erred in using

recklessness, instead of due diligence, to define the standard of

care New Jersey fiduciaries must meet when broadly authorized to

retain trust investments.    On the present record, there remain

genuine disputed issues of material fact as to whether the

Trustee met the standard of care New Jersey requires fiduciaries

to exercise to protect trust beneficiaries from investment

losses.   We will therefore reverse that part of the district

court's order granting the Bank summary judgment on Robertson's

claim that it breached its fiduciary duty of care in retaining

the investment of almost all of Robertson's trust in its own

stock, without any attempt to diversify her trust's investments.

           On the preclusion issue, we are in basic agreement with

the district court's legal analysis.    We will modify its order,

however, to limit preclusion to the period covered by the Bank's

account, which ended March 21, 1988, rather than extending it, as

the district court did, to August 12, 1988, the date the Probate

Court entered its decree approving the Bank's account.1

1
   Although the district court relied on issue preclusion to bar
Robertson's claim, we believe claim preclusion is the appropriate
theory to apply in this case. See Pittman v. LaFontaine, 

, 841 (D.N.J. 1991) ("Claim preclusion refers to the
effect of a judgment in foreclosing litigation of a matter that
never has been litigated, because of a determination that it
should have been advanced in an earlier [proceeding].")
(quotation and citation omitted); Edmundson v. Borough of Kennett
Square, 

, 189 (3d Cir. 1993) ("Claim
preclusion . . . is broader in effect [than issue preclusion] and
prohibits reexamination not only of matters actually decided in
the prior [proceeding], but also those that the parties might
have, but did not, assert in that proceeding."). The precluded
claims include the Bank's sale of the "Fair Haven Property" which
the Bank included in its accounting as personal representative.
                                  I.
                                  A.


          Robertson is the step-granddaughter of Irene Lockwood

Robertson ("Testator").    The Testator died on December 25, 1983.

In her will, she created a trust in which she gave Robertson one

half of any balance remaining in the trust upon the death of

Testator's husband.    The will was admitted to probate by the

Surrogate's Court of Monmouth County on January 23, 1984 and

letters were issued to the Bank on the same day.

          Article IV of the will gave the Testator's husband,

Abraham Robertson (Robertson's grandfather), a life estate that

included the marital residence, located at 62 Harvard Road, Fair

Haven, New Jersey.    Article V placed the Testator's residuary

estate in trust for the life of her husband, Abraham, and named

the Bank trustee.    The Bank accepted this residuary trust on

January 26, 1984.     Article VI directed the Trustee, upon the

death of Testator's husband, to divide the balance of the

residuary estate equally between Robertson and the Monmouth

County Society for Prevention of Cruelty to Animals.     Article VII

of the will deferred distribution of Robertson's share of the

corpus until she reaches age twenty-five.
(..continued)
Robertson also contends that the district court erred in
concluding that the New Jersey Consumer Fraud Act, N.J. Stat.
Ann. § 56:8-2 (West 1989), was inapplicable to the Bank's failure
to diversify trust assets. We agree with the district court that
a claim for failure to diversify trust assets is not among the
fraudulent acts proscribed by the New Jersey Consumer Fraud Act.
In addition, we agree with the district court that Robertson
failed to show that the Bank breached its duty of loyalty.
             The Testator's husband died in 1985.   Robertson's

trust was separately funded in 1988.    At that time, 95% of its

corpus was invested in the Bank's own corporate stock.     This

stock had been held by the Testator at death.    Article X of the

will gave the Trustee the power to retain any investments.

Article X provides in part:
          [T]he Trustee, . . . in addition to and not
          by way of limitation of the powers provided
          by law, shall, except as otherwise provided
          in this my Will, have the following powers to
          be exercised in its absolute discretion: To
          purchase or otherwise acquire and to retain
          any and all stocks, bonds, notes, or other
          securities, or any such variety of real or
          personal property, including interests in
          common trust funds and securities of or other
          interests in investment companies or
          investment trusts, whether or not such
          investments be of the character permissible
          for investments by fiduciaries and without
          regard to the effect of any such investment
          or reinvestment may have upon the
          diversification of investments . . . .


Appellant's Appendix at 91-92. It also provides:
               I specifically authorize my corporate
          fiduciary to retain, temporarily or
          permanently, any or all of the stock of the
          corporate fiduciary owned by me at the time
          of my death in the form in which it then
          exists.

          In September 1987, the Bank filed its first account of

its administration of Testator's estate.    It reported the

estate's inventory and appraisements at an initial value of

$919,425.19.    This included 34,277 shares of the Bank's corporate

stock at a book value of $690,957.56.    The account showed that
the Fair Haven property was sold for $138,347.03 on February 11,

1986, following the death of the life tenant, Robertson's

grandfather.    The account also showed that the Bank had sold more

than 3,000 shares of its own corporate stock during the period

covered, leaving a balance of 31,000 shares.   The shares

remaining had a book value of $625,812.50, but the market value

had increased to almost $1.5 million.   The estate's remaining

corpus had a total book or inventory value of $775,837.62.

          On March 21, 1988, the Bank supplemented its September

1987 accounting and reported the book or inventory value of the

Testator's estate at $779,670.03; in the six months or so between

September 1987 to March 21, 1988, however, the market value of

the Bank's stock had decreased approximately $300,000 to about

$1.2 million.

          In April 1988, the Bank asked the Probate Court to

approve its administration of the estate and its residuary trust

to March 21, 1988.    The court appointed Kerry E. Higgins, Esq. as

guardian ad litem to protect Robertson's interest.   In June 1988,

Higgins reported to the court that she had met with Robertson's

parents, and they "expressed extreme dissatisfaction" with the

Trustee's administration of the estate and trust, as well as its

failure to communicate adequately with them.   Robertson's parents

were particularly disturbed by the Bank's sale of the Fair Haven

property without notice to them, despite their expressed interest

in purchasing it.    In addition, they questioned the Bank's sale

of some of its own stock.   After investigating these matters,

however, Higgins reported that, in her opinion, both the Fair
Haven property as well as the Bank's own corporate stock were

properly sold for fair value.

          On August 12, 1988, the Probate Court entered a

judgment approving the Bank's administration of the estate and

the trust the will created for the life of the Testator's

husband, and discharged the Bank from liability for its conduct

from the Testator's death through March 21, 1988.    The Probate

Court held:
          [The Bank], individually and as personal
          representative and trustee [of] aforesaid are
          hereby fully, finally and forever discharged
          and released of and from any and all
          liability and accountability with respect to
          the administration of the Will from the date
          they commenced serving as such personal
          representative and trustee, through and
          including March 21, 1988, the closing date of
          their First and Final Account and
          Supplemental Account, and thereafter.



See In re Estate of Robertson, No. 134166, slip op. at 4 (N.J.

Super. Ct., Law Div., Probate Part, filed Aug. 12, 1988)

(emphasis added).

          In or about September 1988, the Bank transferred

Robertson's one-half share of the estate's residuary balance into

a separate trust for her benefit.   Robertson and her parents

received an opening statement that showed the Bank's stock

passing to Robertson's trust at an opening book value of

$309,878.12.   These shares again represented more than 95% of the

$325,810.98 total book value of Robertson's trust.   On

September 30, 1988, the market price of the Bank's stock was
$21.00 per share.   Accordingly, it had a market value of

$644,700.00 at that time.

           In her deposition, Robertson testified that the Bank

had begun giving her quarterly financial statements at the end of

1988 and that she had examined them to determine the market value

of the stock in her trust and the trust's total value.    Robertson

realized that the Bank stock, which was transferred to her trust

from the testator's estate, was the trust's main asset.

           In January 1991, Robertson wrote to the Bank's trust

committee seeking money to purchase a home from her parents near

the college she was attending in Florida.   In that letter,

Robertson also said that she was "deeply concerned" about the

decline in value her trust account had suffered over the

preceding year.

           On February 8, 1991, the Bank sold 4,000 shares of its

stock at $9.22 per share, for a total of $36,875.00, apparently

to enable Robertson to purchase the Florida home from her

parents.   In July 1991, Robertson again wrote to the Bank

complaining about a decline in her quarterly income disbursements

from about $7,000.00 to $5,000.00.   She also stated general

dissatisfaction with the Bank's administration of her trust.    In

the July letter she estimated that her trust's "long slide into

the financial cellar" had reduced the value of the corpus of her

trust by $500,000.00.
                                  B.

            On August 1, 1991, before the Bank responded to her

July 1991 letter, Robertson commenced this action.2    In her

complaint she claimed that the Bank had breached its fiduciary

duties by permitting her trust account to suffer such a large

decline in value, by selling the Fair Haven property below its

fair market value and by violating the New Jersey Consumer Fraud

Act.   After completion of discovery, the Bank moved for summary

judgment.   The district court granted the Bank's motion on

December 9, 1993.     It concluded that the will provisions

authorizing the Bank to retain assets excused it from all but

reckless mismanagement and Robertson had failed to show that the

Bank had acted "recklessly or in disregard of its fiduciary duty

of loyalty."    Robertson, No. 91-3383, slip op. at 12.   The

district court also concluded that Robertson was precluded from

seeking damages for any alleged mismanagement of the trust during

the period covered by the Bank's account, including its sale of

the Fair Haven property.    Finally, the district court held that

Robertson had failed to make out a claim under the New Jersey

Consumer Fraud Act.    Accordingly, it granted summary judgment to

the Bank, holding that no material issues of fact remained.

Robertson filed a timely notice of appeal on December 29, 1993.
2
   In an August 16, 1991 response to Robertson's letter, the Bank
primarily attributed the decrease in her income distributions to
the liquidation of principal that enabled Robertson to purchase
the Florida home. The Bank referred to its express authority to
retain the stock the Testator had owned at the time of her death,
but stated that it had nevertheless begun to make orderly
reductions of the trust's investment in the Bank's own stock and
would continue to do so.
                               II.

           The district court had diversity jurisdiction over this

case under 28 U.S.C.A. § 1332 (West 1993).    We have appellate

jurisdiction over the district court's final order granting

summary judgment to the Trustee under 28 U.S.C.A. § 1291 (West

1993).   A district court's order granting summary judgment is

subject to plenary review.   Public Interest Research Group of New

Jersey Inc. v. Powell Duffryn Terminals, Inc., 

, 76

(3d Cir. 1990), cert. denied, 

(1991).    Accordingly,

"we apply the same test as the district court should have used

initially."   

  We evaluate the evidence in

the same manner the district court should have, giving Robertson,

the non-moving party, the benefit of every favorable inference

that can be drawn from the record to determine if there are any

remaining genuine issues of material fact that would enable her

to prevail.   Fed. R. Civ. P. 56; Bank of Nova Scotia v. Equitable

Financial Management, Inc., 

, 83 (3d Cir. 1989);

Celotex Corp. v. Catrett, 

, 322-23 (1986).



                               III.

           Because the district court exercised diversity

jurisdiction over this matter, we are obliged to apply the

substantive law of New Jersey, the state in which it sits.     Erie
R. Co. v. Tompkins, 

(1938); Klaxon Co. v. Stentor
Electric Mfg. Co., 

(1941).   Therefore, we must

decide the extent to which a New Jersey trustee's fiduciary
obligations are affected by trust provisions that not only grant

them broad discretion in the investment of trust assets, but also

broadly authorize retention of any assets the trust receives from

the settlor or testator, without regard to diversification.



                                  A.

             The district court concluded that a fiduciary

administering a New Jersey trust is governed by the standards set

forth in the New Jersey Prudent Investment Law.     See N.J. Stat.

Ann. § 3B:20-12 et seq. (West 1983) (the "Act" or "Prudent

Investment Law.").    This statute was first enacted as N.J. Stat.

Ann. § 3A:15-18 et seq. (West 1951) and has not been amended in

any respect material to this case thereafter.    See Fidelity Union

Trust Co. v. Price, 

, 325 (N.J. 1952) ("Unless the

trust instrument provides otherwise, it is presumed that the

trustor intended that his trustee should have the power to make

such investments of the corpus of the trust as the Legislature in

its wisdom might from time to time permit.").

           Under the Prudent Investment Law, a trustee must act

prudently in making or retaining trust investments.    N.J. Stat.

Ann. § 3B:20-13 (West 1983).     Prudence implies a duty to

diversify.    See Commercial Trust Co. of N.J. v. Barnard, 

, 871 (N.J. 1958); Restatement (Third) of Trusts § 229(d)

(1992).   The Prudent Investment Law states:
                In investing and reinvesting money and
           property of a trust and in acquiring,
           retaining, selling, exchanging and managing
           investments, a fiduciary shall exercise care
           and judgment under the circumstances then
          prevailing, which persons of ordinary
          prudence and reasonable discretion exercise
          in the management of and dealing with the
          property and affairs of another, considering
          the probable income as well as the probable
          safety of capital. If the fiduciary has
          special skills or is named as the fiduciary
          on the basis of representations of special
          skills or expertise, he is under a duty to
          exercise those skills.



N.J. Stat. Ann. § 3B:20-13 (West 1983).

          The will creating Robertson's trust has a provision

permitting retention of assets present at the inception of the

trust.   For such a case, the Act provides:
                If a trust instrument prescribes,
           defines, limits or otherwise regulates a
           fiduciary's powers, duties, acts, or
           obligations in acquiring, investing,
           reinvesting, exchanging, retaining, selling,
           valuing or otherwise acting with respect to
           the property of the trust estate, the trust
           instrument shall control notwithstanding this
           article; but nothing herein shall affect the
           jurisdiction of the Superior Court to order
           or authorize a fiduciary to depart from the
           express terms or provisions of a trust
           investment for the causes, in the manner, and
           to the extent otherwise provided by law.



N.J. Stat. Ann. § 3B:20-15 (West 1983) (emphasis added);3 see

also Manufacturers Trust Co. v. Earle, 

, 116 (N.J.

Super. Ct. Ch. Div. 1954) ("Where . . . the decedent has in

effect drafted a Prudent Man Investment Statute of his own and

included it in his will, specifying in what manner and to what

3
   See infra note 6 for discussion of section 3B:20-15's effect
when a trustee's power to retain assets is permissive as opposed
to mandatory.
extent his trustee may deviate from [the Act], the provisions of

the will must prevail over the statute.").    The Testator's

inclusion of a broad discretionary power to retain assets in

Robertson's trust, without regard to diversification, brings us

squarely up against the question of what limits, if any, New

Jersey places upon broad retention provisions like the one in

this will.

            The Bank contends that the will's authorization to

retain its own stock manifests the Testator's intent wholly to

abrogate the prudent person standard a New Jersey fiduciary would

otherwise owe a trust beneficiary.    If so, this will's retention

power would completely insulate the Bank from fiduciary liability

despite its failure to diversify the trust assets and its

continued heavy investment of the trust's resources in its own

stock.   Robertson, on the other hand, contends that the Bank's

disproportionate retention of its own stock is so contrary to the

most elementary principles of trust management that it cannot be

excused by even the broadest retention power.    In support,

Robertson relies on an expert witness who concluded that the Bank

breached its duty of care, as well as its duty of loyalty, by

continuing to invest so large a percentage of the assets of her

trust in the Bank's own stock.

            At first glance, the provisions of the Prudent

Investment Law we have quoted seem to support the Bank's

argument.     Examination of New Jersey case law applying the Act

indicates to us, however, that retention provisions similar to
the one before us do not grant trustees the sweeping exemption

from fiduciary duties of care that the Bank proposes.

          Generally, if the terms of a trust instrument authorize

a trustee to retain investments that originally passed to it from

the settlor of a testamentary trust, the trustee may retain them

without liability.   See Liberty Title & Trust Co. v. Plews, 

, 641 (N.J. Ch. 1948), rev'd on other grounds, 

(1950); N.J. Stat. Ann. § 3B:20-15 (West 1983); Restatement

(Third) of Trusts § 229(d) 1992.    Nevertheless, a trustee may not

rely on a power to retain investments when circumstances make

retention imprudent.   

(quoting Dickerson v.

Camden Trust Co., 

(N.J. Ch. 1947), modified, 

(N.J. 1949)).    Stated differently, "[e]ven where securities

are retained by a trustee pursuant to . . . a direction in the

will, the trustee is privileged to retain them only so long as

they remain safe."   Id.; see also In re Munger's Estate, 

, 209 (N.J. 1973) ("The mere fact that the testator did not

want his fiduciary bound by [the] statute does not of itself

establish that [the testator] desired to authorize [certain

investments]."); Restatement (Third) of Trusts § 229(d) (same).

In short, an authorization to retain investments enhances the

trustee's discretion, but does not wholly insulate it from

liability for its exercise of a power to retain assets.   

.

          Thus, the first question that must be decided is the

standard of care the Bank is required to exercise in managing a

trust that permits it to retain its own stock.    Viewed from a
different perspective, we might inquire into the extent to which

this Testator wished to absolve her trustee of its usual duty to

diversify.4   In considering these questions, we agree with the

district court that New Jersey has rejected the Bank's broad

argument that the retention clause completely absolves it from

any duty to diversify.   See 

("The

[retention] clauses adverted to do not of themselves absolve [a

fiduciary] from liability. . . .").   It is, therefore, necessary

to determine "whether the trustee so conducted itself as to

warrant the granting of that protection with which it seeks to

cloak itself under the [retention clause]."   

   Diversification is a uniformally recognized characteristic of
prudent investment and, in the absence of specific authorization
to do otherwise, a trustee's lack of diversification would
constitute a breach of its fiduciary obligations. See
Restatement (Third) of Trusts § 229(d); See also Erlich v. First
Nat. Bank of Princeton, 

, 236 (N.J. Super. Ct. Law
Div. 1984) (An investment manager has an obligation to exercise
prudence in diversifying investments to reduce the risk of large
losses; indeed, diversification has been the accepted practice
since "the early case of Dickinson's Appeal, 

, 

(1890)."); In re Ward Estate, 

, 71, 73 (N.J.
Prerog. Ct. 1936) ("No ordinarily prudent man would have
recommended putting 95 per cent. of the fund in common stocks,
certainly not in unlisted securities of a single locality. . . .
This portfolio is too lopsided for safety."), aff'd, 

(N.J. E.&A. 1937). The Bank itself recognizes the importance of
diversification. Its own investment policy provides that
excessive concentration of funds in any one issue should be
avoided and that if greater than 10% of the equity portfolio is
invested in one issue consideration should be given to reducing
this concentration by diversifying.
           In holding that the asset-retention provision did not

"abrogate [the Trustee's] general obligation to invest with

prudence," see Robertson, No. 91-3383, slip op. at 11, the

district court decided that the asset-retention provisions of

Article X of the will were "permissive," as opposed to

"mandatory," see 

they did not deprive the Bank of

power to sell the stock that it now holds for Robertson's

benefit.   The district court analyzed the required standard of

care as follows:
          [I]f, by the express terms of the trust[,]
          the trustee is permitted but not required to
          retain certain investments originally
          transferred to the trust from the decedent's
          estate, the trustee is not liable for
          retaining them absent evidence that said
          trustee acted recklessly or in disregard of
          the fiduciary duty of loyalty.



See 

           We believe that this unduly relaxes the standard of

care a trustee owes the beneficiaries.   The prohibition against a

fiduciary's retention of its own stock, which the common law once

imposed, had as its rationale the fiduciary's duty of loyalty,5

rather than its duty of care.   Like the district court, we do not

think, however, that a permissive power to retain trust assets

wholly absolves a trustee from liability for breach of its duty

of care; but we disagree with the district court that the

standard of care under an explicit power to do so is
5
   We reiterate our conclusion that Robertson has failed to show
a breach of the duty of loyalty on this record. See supra
note 1.
recklessness.   Instead we believe a trustee should exercise due

diligence in deciding whether to retain its own stock as a trust

investment.6

          Here, however, the district court concluded that the

trustee could not be held liable for alleged mismanagement of

Robertson's trust, unless she showed that it acted "recklessly."

See Robertson, No. 91-3383, slip op. at 11.   We recognize that a

fiduciary specifically authorized to retain trust assets may

decide to do so even though the value of the retained assets is

declining or market indicators otherwise suggest its disposal.

Still, a trustee must pay attention.    Its decision to retain the

asset must be the result of a prudent, reasoned and deliberate

decision-making process.    See In re Paterson Nat'l Bank, 

(N.J. Prerog. Ct. 1939), aff'd, 

(N.J. E.&A. 1940),

discussed infra at 21-23.


6
   Even a trustee faced with a mandatory retention provision can
apply to the court for permission to dispose of any investment it
is directed to retain. See N.J. Stat. Ann. § 3B:20-15 (West
1983); Restatement (Second) of Trusts § 167 (1959); see also

(quoting In re Buckelew's Estate, 

(N.J. Prerog. Ct. 1940), aff'd, 

(N.J. E.&A.
1941)) ("It is the duty of a trustee to use every reasonable
effort to inform itself as to the value and the soundness of the
trust investments and to keep a careful check of fluctuating
values. If it be in doubt in a situation then it behooves it to
seek instructions from the court as to its course of action in
the premises."). In fact, the Restatement concludes that, in
emergency situations, the fiduciary may dispose of the security
without first obtaining the court's permission, although such
action would be subject to the court's subsequent approval. See
Restatement (Second) of Trusts § 167(2) and cmt. e. We believe a
permissive retention provision, like the one in this case, simply
allows the fiduciary to avoid the delay and expense evident to
court approval.
            It is clear that the duty of a trustee to exercise care

is affected by a retention provision.     See 

.

Neverthless, even one as broad as the one in Robertson's trust

does not seem to us to lower the standard to recklessness.         Thus,

in 

, the court analyzed the fiduciary obligations of

a trustee that had wide discretion to retain specific assets and

held that an asset-retention provision in a trust instrument

could not
            be said to relieve the [fiduciary] from
            exercising that degree of care and prudence
            normally required of a fiduciary nor to
            excuse a violation of a trust duty. [Such
            authorization] does not permit the
            [fiduciary] to blindly retain such
            investments regardless of their value or
            sufficiency. 'Retaining investments is in
            effect making them.' Under these clauses,
            the same fidelity, faithfulness, care and
            prudence is required. . . 

(quotation omitted) (emphasis added).

            The Plews court reasoned that asset retention clauses

merely "permit the retention of [the] testator's investments for

such length of time as [the fiduciary] might deem proper,"

without regard to any statutory provision.     

not

absolve a fiduciary from exercising care and diligence in

managing trust investments.    

[an authorization]

clause serve[s] to permit [a] trustee to make [certain

investments, otherwise inappropriate] it is still required to

exercise that degree of care and prudence in handing [sic] the

monies and affairs of the trust estate as is normally required of

fiduciaries.") (emphasis added).
           The Plews court reasoned further that fiduciaries which

possess or hold themselves out to possess expertise in investment

management can be more readily found to breach this standard.   It

stated:
                Normally, a trustee is required to
           exercise that degree of care and caution,
           skill, sagacity, and judgment, industry and
           diligence, circumspection and foresight, that
           an ordinary discreet and prudent person would
           employ in like matters of his own.

                In the present case, the corporate
           trustee held itself out as an expert in the
           handling of estates and trust accounts. It
           also held itself out as having particular
           departments for investments and statistical
           information, and especial skill in this
           respect. It had so advertised for a number
           of years, and with the knowledge of the
           deceased, who had been a director at the time
           of his death and for many years theretofore.
           It therefore represented itself as being
           possessed of greater knowledge and skill than
           the average man and . . . so it was incumbent
           upon the trustees to exercise such care,
           skill, diligence, and caution as a man of
           ordinary prudence would practice in like
           matters of his own. . . . And if the trustee
           possesses greater skill than a man of
           ordinary prudence, he is under a duty to
           exercise such skill as he has. It was under
           a duty to exercise a skill greater than that
           of an ordinary man. The manner in which
           investments were handled must be viewed and
           assayed in the light of such superior skill
           and ability.

(quotations and other citations omitted) (emphasis
added).7
7
   See also N.J. Stat. Ann. § 3B:20-13; In re Estate of Killey,

, 375 (Pa. 1974) (citing Plews in rejecting trial
court's use of ordinary negligence standard and holding instead
that a trustee bank, which "held itself out as an expert in the
          Applying these general principles to the facts before

it, the Plews court held that the trustee had failed to exercise

the degree of care, skill, diligence and fidelity generally

required of a person with its skills and that the securities in

question "were held beyond the time when they were safe."     

  The court reached this conclusion even though it decided

that there was no proof of wilful wrong, bad faith, fraud or

gross misconduct.   We believe the Plews court's rejection of a

gross misconduct standard forecloses use of the "reckless"

standard the district court applied in the present case.

Robertson, No. 91-3383, slip op. at 11.

           Moreover, in Behrman v. Egan, 

(N.J. Super.

Ct. Ch. Div. 1953), the court held trustees liable for a trust's

losses despite an exculpatory provision insulating them from

liability for mismanagement.   The court rejected the trustees'

argument that the trust agreement "relieve[d] them from all

responsibility for actions other than those which were the result

of conscious wrongdoing."   

(emphasis added).     Rather

the court held, "the [trustees] contention that the exculpatory

clause saves the trustees from any penalty for conduct other than

that which would, in effect, constitute an indictable offense, is

untenable." 

               While consideration is given to such
          exculpatory provisions the courts construe
(..continued)
handling of estates and trust accounts[,]" was "under a duty to
exercise a skill greater than that of an ordinary man and the
manner in which investments were handled must accordingly be
evaluated in light of such superior skill.") (footnote and
citations omitted).
           them strictly and there appears to be a
           tendency to view such provisions with a
           searching scrutiny of the relation existing
           between the parties and the circumstances of
           the insertion of such a clause in a trust
           instrument. Our courts have applied a strict
           construction to such exculpatory clauses and
           have said that they do not relieve a trustee
           of liability where a loss results from
           negligence in the administration of the
           trust. Liberty Title & Trust Co. v. Plews,
           142 N.J.Eq. 493, 

(Ch. 1948).

(other citations omitted).    The Behrman

court then held that "[t]he conduct of [a] trustee [is] to be

measured by the principle that a trustee owes an obligation to

the Cestuis and a duty to exercise that degree of care, prudence,

circumspection and foresight, that an ordinary prudent person

would employ in like matters of his own." 

-02 (emphasis

added) (citing, among other cases, Paterson Nat'l 

).

           We think the district court mistakenly relied on

Paterson Nat'l 

, and Beam v. Paterson Safe Deposit &

Trust Co., 

(N.J. E.&A. 1914), as authority for a
standard of recklessness.   In Paterson Nat'l Bank, the will not

only authorized and empowered the trustee to retain certain

stock, but also expressly exempted it from liability for any loss

resulting from such retention.    Paterson Nat'l 

.   The court held that the trustees were not liable because

"the trust was discussed and considered at practically every

meeting" and the directors were "always of the opinion that the

said stock should be retained."    

  It so held because

there was no "proof that [the] trustee did not give diligent and
careful consideration to the administration of its trust."    

. It found instead that the trustee
          exercised its best judgment and
          circumspection in determining whether to sell
          or retain the very stock which the testator
          himself had acquired and held as an
          investment. Even if it could then have been
          definitely said and determined that it erred
          in its judgment, nevertheless that alone
          could not render it now liable to being
          surcharged.

(citations omitted).

          Thus, although Paterson Nat'l Bank held that the

trustee was not liable, it plainly said that even a trustee who

is expressly absolved from liability for retention has to

exercise due diligence in its exercise of a power to retain

investments. Specifically, the court stated:
          [A] careful examination of the proofs here
          adduced fails to disclose any evidence of
          negligence on the part of the trustee either
          in the administration of the trust or in the
          retention of the stock in question. All that
          the law exact[s] of [a] trustee in the
          administration of its stewardship [is] an
          obligation of faithfulness to the cestuis and
          a duty to exercise ordinary care, prudence
          and diligence.

(emphasis added) (citations omitted).
Paterson, therefore, does not relieve a fiduciary with a power to

retain trust assets from its duty to exercise due diligence.    See

Blauvelt v. Citizens Trust Co., 

, 188-189 (N.J. 1950)

(citing Paterson Nat'l Bank in framing the issue as "whether the

retention of the stock constituted negligence," as opposed to
recklessness) (emphasis added); 

(citing

Paterson Nat'l Bank as standing for the same proposition).

          Likewise, we do not read Beam, 

, to stand for

the proposition that the standard of care governing a fiduciary

administering a trust with broad retention powers like those we

have here is recklessness.    Though the stocks and bonds the Beam

trustee retained were, as here, those a testator had invested in

during his lifetime, the record in Beam showed that the trustee

had acted diligently to protect the beneficiary's interest.

Thus, as in Paterson, the trustee was not held liable for the

losses the trust suffered.8




8
   In the present case, during oral argument, the Bank's counsel
stated that it decided to retain the stock in the Robertson trust
account because it viewed itself as a candidate for takeover. If
supported by evidence, this could provide support for the
proposition that the Bank exercised an appropriate degree of
care. Whether this would be sufficient to bring the Bank within
the protection the asset-retention clause was intended to provide
seems to us, however, to be a question of fact that cannot be
decided on a Rule 56 summary judgment motion. Robertson points
to conflicting evidence, such as the Bank's policy on
diversification and its conduct in the administration of similar
accounts. Resolution of these conflicts involves questions of
fact, not law.
                                C.

          Furthermore, since Paterson and Beam were decided, the

New Jersey courts have been increasingly reluctant to excuse

mismanagement by professional fiduciaries who hold themselves out

to have expertise in trust administration.     See 

("The policy of this State, expressed in both case law and

statute, dictates that professionals be held to the standards of

their professions in delivering services to their clients.").

          In Erlich, for example, an investor brought an action

against a corporate trustee and its former employee, seeking

damages for alleged mismanagement of a custodian management

account ("CMA").   There, 80%-90% of the portfolio (based on

market value) was invested in the stock of one company.    When the

value of this company's stock declined substantially the person

who had created the account filed a claim against the Bank

alleging negligence, malpractice, breach of fiduciary duty and

breach of contract.

          The Ehrlich beneficiary had significant control over

investments and "[n]o stock was ever purchased or sold without

[his] written authorization."   

   In addition, the

custodial agreement between the bank and investor had an

exculpatory clause relieving the bank from liability not only for

investment recommendations it made in good faith, but also for

failure to make recommendations.     The court held that this

exculpatory clause was void and unenforceable, reasoning that to

"allow investment advisers to exculpate themselves from the

mischief caused by their breach of duty would violate the public
policy of this State." 

   Instead, it held the trustee

to the following standard of care:
               A professional must exercise that degree
          of care, knowledge and skill ordinarily
          possessed and exercised in similar situations
          by the average member of the profession
          practicing in his field. . . . It is
          therefore the degree of care, knowledge and
          skill expected of professional investment
          advisors to which we must look for the
          standard of care.

The Ehrlich court concluded that "it was not prudent of the Bank

to use a single stock strategy for plaintiff, given his

circumstances," 

and held the bank "negligent in its

supervision and periodic review of the account, its failure to

provide for diversification and its failure to consider the risks

[of non-diversification] to plaintiff."    

          In In re Estate of Bayles, 

(N.J. Super.

Ct. App. Div. 1970), the court similarly held an executor liable

for retaining approximately 60% of a trust's corpus in a stock as

it declined in value.10    Because the executor was an attorney who

was experienced in the administration of estates, the court

9
   In this case, there is a similar agreement between the Bank
and Testator, separate from her will. Erlich clearly shows that
this agreement cannot insulate the Bank from liability for
mismanagement of Robertson's trust.
10
   Distinguishing the duties of trustees and executors, the
Bayles court stated that trustees are usually held to higher
standards than personal representatives, but nevertheless held
that even "[an executor] may be held liable for loss if he
retains stock or other securities beyond a reasonable time for
sale." 

.
stated that he should have taken prompt steps to liquidate the

stock of a single company that represented more than half the

value of the estate's investments and was undergoing volatile

price changes.   The Court held him liable, despite a finding that

he did not act recklessly or in bad faith.11



                                  D.

          We believe these decisions also require us to consider

asset-retention powers in conjunction with the Testator's purpose

and her objective in creating the trust in light of the trust

agreement read as a whole.     See Restatement (Third) of Trusts

§ 229(d) (Retention authorization and other exculpatory language

"does not allow the trustee to act in a state of mind not

contemplated by the settlor.") (emphasis added); 

(same); In re Munger's 

(same).

This Testator created a trust to postpone distribution of

substantial wealth.   Its preservation requires skillful and

diligent investment until Robertson attains age twenty-five, now

two years in the future.     We do not believe the Testator intended

to authorize the Bank to retain an inordinate percentage of the

trust's assets in its own stock without exercising due diligence.

11
   See also Hy-Grade Oil Co. v. New Jersey Bank, 

,
282 (N.J. Super. Ct. App. Div. 1975) ("'We find the public need
for professional and competent banking services too great and the
legitimate and justifiable reliance upon the integrity and safety
of financial institutions too strong to permit a bank to contract
away its liability for its failure to provide the service and
protections its customers justifiably expect, that is, for its
failure to exercise due care and good faith. . . .") (quotation
omitted), certif. denied, 

(N.J. 1976).
Were we to so hold, we believe we would permit this Trustee to

act without regard for the Testator's purpose of protecting

Robertson against inept or rash youthful investment.12

          Based on all these cases, we believe New Jersey holds a

Trustee who has a broad discretionary power to retain its own

stock, to a due diligence standard, rather than recklessness.13

Under a due diligence standard, the question whether the Bank's

liability for breach of the fiduciary duty of care it owes

Robertson cannot be decided in the Bank's favor on the record now

before us on a summary judgment motion.14

12
   It also seems to us that the Testator's intent may be a fact
question, which would be inappropriately disposed of on a summary
judgment motion. See Shanley & Fisher, P.C. v. Sisselman, 

, 878 (N.J. Super. Ct. App. Div. 1987) ("[T]he court
should be particularly hesitant in granting summary judgment
where questions dealing with subjective elements such as
intent . . . [is] involved.") (citations omitted).
13
   New Jersey's due diligence standard is not in conflict with
the Restatement of Trusts, nor does it seem precluded by the
dicta in Paterson Nat'l Bank on which the district court relied
when it adopted a standard of recklessness to judge the Bank's
continued investment of almost the entire corpus of Robertson's
trust in its own stock.
14
   Our conclusion is supported by the decisions of courts in
other states. See First Alabama Bank of Huntsville v. Spragins,

, 516 (Ala. 1985) ("We agree with the general
proposition that the duties and obligations of the trustee are
governed in large measure by the terms of the trust instrument.
We do not agree, however, that this proposition can be applied
here to lessen the duty imposed by the "prudent person"
standard.") (emphasis added) (citations omitted); Union Commerce
Bank v. Kusse, 

, 890 (Ohio Prob. 1969)
("[U]nlimited investment authority given to [a trustee in a] will
does not relieve the fiduciary from the obligation of due care
and prudence. . . . When the fiduciary is a corporate executor
and trustee, with greater skill and facilities for handling trust
estates than those possessed by the 'ordinary prudent man,' such
fiduciary is held to a higher degree of care, consonant with its
                          V.   Conclusion

          We will reverse the district court's order granting the

Bank summary judgment.   We will modify that part of the district

court's order precluding claims for mismanagement on the basis of

claim preclusion to bar Robertson's claims up to March 21, 1988,

instead of August 12, 1988.    Finally, we will affirm the holding

of the district court that the Bank did not violate its duty of

loyalty and remand this case to the district court for further

proceedings consistent with this opinion.




(..continued)
greater skill and facilities.") (citations omitted); Starks v.
United States Trust Co. of N.Y., 

, 678 (S.D.N.Y.
1978) ("A trustee's performance is not judged by success or
failure . . . and while negligence may result in liability, a
mere error in judgment will not.") (emphasis added) (footnotes
omitted); Estate of Killey, 

, 375 (Pa. 1974) (citing
Plews, 

) (rejecting trial court's use of ordinary
negligence standard and holding, when a trustee bank "held itself
out as an expert in the handling of estates and trust
accounts[,] . . . [i]t was . . . under a duty to exercise a skill
greater than that of an ordinary man and the manner in which
investments were handled must accordingly be evaluated in light
of such superior skill.") (footnote and other citations omitted).