March 22, 2010
IN THE MATTER OF THE ESTATE OF FRANK P. WERNER, DECEASED.
On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Middlesex County, Docket No. 192982.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 9, 2010
Before Judges Skillman, Gilroy and Simonelli.
Appellant William Werner appeals from parts of the final judgment entered on March 24, 2009, and parts of the order for partial summary judgment entered on January 22, 2008. We affirm substantially for the reasons set forth in the January 22, 2008 letter opinion of Judge Waugh and the January 28, 2009 and March 10, 2009 letter opinions of Judge Ciuffani. In addition, we note that the Prudent Investor Act, N.J.S.A. 3B:20-11.1 to -11.12, upon which appellant relies, only applies to "a fiduciary who invests and manages trust assets." N.J.S.A. 3B:20-11.2(a). Therefore, this statute does not apply to an executor unless a will establishes a testamentary trust and the executor is also the trustee of that trust. See In re Armour's Will, 33 N.J. 517, 524-25 (1960) (discussing the differences in the duties of an executor and a trustee); In re Estate of Bayles, 108 N.J. Super. 446, 453-54 (App. Div. 1970) (same). Notwithstanding enactment of the Prudent Investor Act, an executor continues to be governed by the standard of care set forth in N.J.S.A. 3B:10-26. Appellant's arguments are without sufficient merit to warrant any additional discussion. R. 2:11- 3(e)(1)(E).
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