In Re Estate of Feldstein

292 So. 2d 404, 1974 Fla. App. LEXIS 7760

• Court: District Court of Appeal of Florida
• Decided: April 2, 1974
• Docket: 73-943
• Status: Published

Opinion

292 So.2d 404 (1974)

In re ESTATE OF Morris FELDSTEIN, Deceased.

No. 73-943.

District Court of Appeal of Florida, Third District.

April 2, 1974.

Pelzner & Schwedock, Miami, for appellant.

Harold Tannen, Miami, for appellees.

Before BARKDULL, C.J., and HENDRY and HAVERFIELD, JJ.

HENDRY, Judge.

This is an appeal by the executrix and trustee under the will from an order surcharging her $8,225 for failure to rent the decedent's condominium for four years. We affirm.

Appellant argues that the testator intended to absolve her of any honest errors of judgment as his personal representative particularly emphasizing paragraph Seventh of the will.

However, this paragraph only relieves appellant from liability for postponing the sale of any of the decedent's real property. It does not pertain to rental of the property while it is held.

Appellant as executrix and trustee is bound by Fla. Stat. §§ 518.10 and 518.11, F.S.A., the "prudent man rule." In our view, the probate judge was justified in imposing a surcharge where appellant has neglected her duty to obtain income for the estate, which in this case would have benefited beneficiaries under the testamentary trust created by the decedent's will.

We also see little merit to appellant's contention that the trust beneficiaries had no standing to bring the instant proceeding. See Rule 5.140, Probate and Guardian Rules. Even if the beneficiaries lacked standing the court on its own motion may require an accounting or evidence concerning the estate assets from the personal representative. Fla. Stat. §§ 733.50 and 733.51, F.S.A.

Therefore, for the reasons stated, the order appealed is affirmed.

Affirmed.