2.3 The “Legal List” of Investments

Est. & Trusts § 15-106 sets out “lawful investments” in which a fiduciary may invest.   It is not exclusive: “This section shall not be construed to make unlawful any investment not listed in this section.”   Est. & Trusts § 15-106(g).   Also, investing on the list is not a defense to imprudence.   The Henderson Commission recommended abolishing the legal list of fiduciary investments.   Notwithstanding this recommendation, the “legal list” remains in the Code but offers no protection to the fiduciary: “The Maryland legislature has interposed what can be characterized as a permissive legal list for most fiduciaries; it has acknowledged, however, that the prudent man rule underlies all fiduciary investment decisions. One is then left to wonder why Maryland’s legal lists are necessary … In essence, Maryland’s statutory provisions on investments by fiduciaries generate much heat but little light. The fiduciary is on his own in making decisions, frequently operating under the belief that the law protects him when, in fact, it only creates a presumption in favor of his decisions if he complies with the statutory recommendations.” Tralins, Contemporary Fiduciary Investments: Why Maryland Needs the Prudent Man Rule, 12 U. Balt. L. Rev. 207, 230-231 (1982).