Jacob v. Davis

ADKINS, Judge. Appellant William H. Jacob (Bill) is the sole remainderman of two trusts established under the last will and testament of his father, John B. Jacob (John). Appellant sued Michael W. Davis, the surviving trustee of those trusts, and Davis’s law firm, Ahlstrom & Davis, P.A., appellees, alleging numerous violations of appellees’ fiduciary duties as trustees, and seeking an accounting, other equitable relief, and damages. The complaint included the following counts: 1) breach of fiduciary duty; 2) declaratory relief; 3) injunctive relief; 4) breach of contract; 5) tortious breach of covenants of good faith and fair dealing; 6) negligence; 7) trover and conversion; and 8) an accounting and establishment of a constructive or resulting trust.

Ruling on a motion made by appellees at the end of appellant’s case, the trial court entered judgment pursuant to Maryland Rule 2-519 in favor of appellees on all eight counts. This appeal was timely filed from that judgment. FACTS John died on January 22, 1994, leaving an estate valued at $853,164, and a will that created two trusts known as the Marital Trust, and the Family Trust, respectively (collectively, “the Trusts”). John’s surviving wife, Harriett Bell Jacob (Harriett) was the income beneficiary of the Trusts, and appellant was the remainder beneficiary.

Harriett, appellant’s stepmother, had the right to make certain withdrawals of principal from the Family Trust, limited in amount and timing, and Davis, as independent trustee, had the authority to make discretionary distributions of principal from the Trusts to Harriett “as, in the sole and absolute discretion of [Davis], are' necessary, desirable or appropriate for the health, education and support of [Harriett] in [her] accustomed manner of living.” The will directed that “in exercising such discretion, ⁴³⁹ the Trustee may take into account other financial resources of the beneficiaries under consideration.” Harriett, was prohibited from participating in the discretionary decision to distribute principal to her. John bequeathed his residuary estate to the Marital and Family Trusts. The size of each trust was determined by a formula, which directed that the Family Trust receive an amount equal to the maximum amount that could pass free of federal estate taxes by utilizing the credit against estate and gift taxes (“unified credit”) available to John, and the Marital Trust receive the remainder. Application of this formula resulted in zero federal estate tax payable by John’s estate, because his available tax credit allowed $600,000 to pass to the Family Trust free of tax.

Further, there were no taxes payable with respect to the assets passing to the Marital Trust, because the trust qualified for the federal estate tax marital deduction (“marital deduction”), and thus any tax was deferred until the death of Harriett. Appellee Davis and Harriett were designated as personal representatives of John’s estate. The personal representatives were required to make an election on his federal estate tax return identifying what portion of the Marital Trust they elected to qualify for the marital deduction. Although all assets passing to the Marital Trust could so qualify, an election was required to effectuate the marital deduction.

The personal representatives were required to show on the estate’s Administration Account filed with the Orphans’ Court the exact amount passing to the Marital Trust. 1 The First and Final Administration Account for John’s estate, filed November 7, 1994, showed that $80,223 was to be distributed to the Marital Trust. This was consistent with the $80,476 ⁴⁴⁰ elected by the personal representatives to qualify for the marital deduction on John’s federal estate tax return. 2 In fact, however, no assets were distributed to the Marital Trust, and this trust never was funded. John’s entire residuary estate was distributed by appellee Davis and Harriett, personal representatives, to the Family Trust. The 'discrepancy between 1) the amount designated as passing to the Marital Trust on the distribution account for John’s estate ($80,476), which is consistent with the federal estate tax return, and 2) the actual amount distributed (zero), is one subject of appellant’s complaint.

Another subject of appellant’s complaint is the refusal of appellee Davis to provide appellant with an accounting for the Trusts. Appellant first requested an accounting in May of 1996, by letter to a paralegal at Ahlstrom & Davis, P.A., who assisted Davis in estate and trust matters. Responding in a May 28, 1996 letter (May 28 letter), Davis told appellant: Your letter raised an interesting point regarding my duties to you under the Trust Agreement for the aforesaid Trust. As you know, I am a co-Trustee with your stepmother, Harriett Bell Jacob, of this Trust.

Pursuant to the provisions of the Trust, the Trustee is to render an annual account to the “current income beneficiaries” of the Trust. At present, your stepmother is the only income beneficiary. Thus, I as Trustee, have no obligation to provide to you an accounting for the Trust. If you wish, I will forward a copy of your letter to [the paralegal] to your stepmother for the purpose of obtaining her approval to give you an accounting for the Trust.

Since she and I are co-Trustees, and since she is the sole income beneficiary, if I were to provide such an accounting to you without obtaining her consent first, I would be breaching my fiduciary obligations to her. Please let me know if you wish for me to do this____ Your stepmother is very active in the administration of this Trust, and, in fact, makes all ⁴⁴¹ decisions regarding any distributions from the Trust. My only role at this point is to facilitate her administration and to provide to her any counsel that she may wish regarding the Trust. After receiving this letter, appellant called Harriett to request her permission for an accounting, but she declined.

Harriett died in January 1997, leaving an estate valued at approximately $1,500,000. On April 17, 1997, almost a year after his first request, appellant again requested by letter an accounting of the Trusts, this time through his attorneys, Christopher Wheeler and Gene C. Lange (collectively, ‘Wheeler”)- In the letter Wheeler asked that the accountings “cover all assets, property, receipts, expenditures, distributions, trustee and other commissions, attorneys’ and other professional fees, and any and all payments or transfers to and from the two trusts and [Harriett’s] Estate.” The letter also requested all “books, records, tax returns, court filings or other information” concerning these items. Wheeler requested that the information be furnished by April 25, 1997. In response to this letter, Davis wrote to Wheeler on April 18,1997, and said, inter alia: [P]lease be advised that the John B. Jacob Marital Trust was never established since the total assets that were available from the Estate of John B. Jacob to be distributed to his Testamentary Trust did not exceed $600,000.

Davis enclosed in his letter copies of the following documents: 1) inventory and distribution account for John’s estate; 2) statements from the brokerage firm of Ferris, Baker Watts for the Family Trust; 3) the check register for the Family Trust checking account; 4) 1995 and 1996 balance sheets, prepared by the accountant for the Family Trust; 5) 1995 and 1996 “general ledgers,” prepared by the accountant, showing income and other deposits received, disbursements, plus sales of stocks; 6) income tax returns for 1995 and 1996 filed by the Family Trust; 7) a summary of profits and losses for 1995 and 1996 showing $143,543 in total distributions to Harriett over the two-year period; and 8) John’s will and First and Final ⁴⁴² Accounting for John’s Estate. Davis also provided a two-page document, unsigned, titled “John Jacob Family Trust, Recap of Transactions.” Pertinent portions of this recap are reproduced below: JOHN B. JACOB FAMILY TRUST RECAP OF TRANSACTIONS 1. JAN. ‘95 2 taxable GNMA/FNMA bonds (35,000/ea.) transferred to Harriett’s individual account, as well as 6,000 in cash This transfer was to satisfy the following: $30,000 specific bequest under Mr. Jacob’s Will, the family allowance of $5,000, and all income and interest earned by the Estate during the time of administration * * * 2. MAR. ‘95 400 shares of Pfizer, 100 shares of United Technology transferred to Harriett as reimbursement for living expenses she paid out-of-pocket during the course of Estate administration ($28,997 rent to Vantage House, $12,830 other living expenses and medical expenses paid on behalf of Mr. Jacob) 3.

APR. ‘95 Balt. Co. MD RFDG, 5.7% ($15,000) bond sold to provide cash for expenses 4. MAY‘95 100 shares of AT & T ($5600) transferred to Harriett’s account — per JD Ring, this was Trust income due to Harriett and she took the shares of AT & T rather than cash.. Trust income thru May was approx. $9,290. $4,000 was transferred directly from FBW, and the remainder was taken in stock. 5.

DEC. ‘95 ⁴⁴³ $10,000 check requested from FBW to put cash into First National Trust checking for expenses. 6. DEC. ‘95 5% of the value of the Trust to go to Harriett pursuant to her 5/5 powers — she elected to take the $20,000 Md. 1st Ser. 6.5% bond and the $10,000 P.G. Co. MD IDA 6.65% bond. These were then transferred into her account. 7. DEC. ‘96 5% of the value of the Trust to go to Harriett pursuant to her 5/5 powers — she elected to take $10,000 Md. St. Dept.

Trans. 6.375%; $15,000 MD CDA 6.3%, and 142 shares of Southern Co. ($3,159 value) 8. JAN. ‘97 $4,750 cash transferred from the Ferris, Baker Watts into First National Bank Trust account (in anticipation of having to pay medical bills) There have been a total of 26 checks written from the Trust checking account since it was opened. 21 of the 26 checks were written to Vantage House for the monthly rental. The other checks were as follows: 1. Ahlstrom & Davis, P.A. 12/95 — $1,931.40 (fees) 2.

Harriett Jacob 6/96 — $10,000 (repayment of loan — no interest requested) 3. Jeffrey D. Ring & Co. 10/96 — $1,350 (fees) 4. Ahlstrom & Davis, P.A. 1/97 — $3,095.63 (fees) 5. IRS 1/97 — $327.73 (taxes due on ’94 return) The recap summarizes distributions to Harriett, but often does not designate whether they were principal or income.

For example, Harriett’s monthly expenses at Vantage House were paid in March 1995 from the Family Trust, but not designated as either principal or income. In addition to the Vantage House payments, stocks, bonds, and cash with an approximate value of $143,000 3 were transferred to her during ⁴⁴⁴ the two-year period. According to the Family Trust checkbook, payments to Vantage House totaled $49,572.67. These distributions to Harriett or for her benefit substantially exceeded the Family Trust income during this period.

With respect to the other information requested by Wheeler, Davis said: With such short notice, the above is the best that we can do to comply with your request that we provide you information by April 25, 1997. From these documents, you should be able to understand the relationship between the Estate of John B. Jacob, the John B. Jacob Family Trust, and Harriett Bell Jacob. I think you will find that there were no distributions from the Trust that did not comply with both the intent and the provisions of the Last Will and Testament of John B. Jacob. Davis did not provide any further information to explain the discrepancy in accounting regarding the Marital Trust funding.

Nor did he provide information as to how the expenses of the trust, such as trustees’ commissions and accountant fees, were allocated between the income beneficiary and the re-mainderman. Further, no information was provided to show how in kind distributions of stock to Harriett were valued, e.g., at inventory value or fair market value. Davis did offer to meet with appellant and counsel and the accountant for the estate to discuss their concerns. On May 5, 1997, Wheeler replied that “a meeting would probably be beneficial, but [we] would prefer that we have a little longer to digest the information you provided.” In that letter Wheeler also said: ‘We have noted an omission in the documents you provided.

As a result we hereby request a complete accounting of (including all documents related to) the transfer of assets owned by John B. Jacob at his death, to the Family Trust, for the period October, 1994, through January, 1995.” Wheeler also requested the federal estate tax return for John’s estate. Davis responded to Wheeler’s letter on May 7, and enclosed the Ferris, Baker Watts statements for the period requested ⁴⁴⁵ and the federal estate tax return. With respect to the statements, appellee Davis commented: “[pjlease note that there may be discrepancies between these statements and the accounting that was filed in the Orphan’s Court.... The Accounting does not provide a means to show changes in the prices of the equities during the time from when the estate is opened until the time the estate is closed.” He also said: Please advise Mr. Jacob that we are currently in a position to wind up his father’s trust and make the final distributions as required under [his father’s] Last Will and Testament.

Until any potential claims that Mr. Jacob wants to make are resolved, however, we cannot wind up the trust. We await Mr. Jacob’s pleasure with regard to the timing of this process. On May 23, 1997, Wheeler again wrote to Davis, and requested that he “explain the justification for the removal of’ five stocks and seven bonds from the trust, as well as other specific items, suggesting that these items “could only be removed from the Family Trust pursuant to the terms and intent of the Family Trust established by Mr. Jacob.” The record does not reflect Davis’s response to this letter. Bill testified that he never received any explanation or accounting from Davis regarding the trust principal that was distributed to Harriett.

Appellees took the position at trial and on appeal that they had no obligation to account to Bill. Although the letters refer to several telephone conversations between counsel, there is no indication that the parties ever had a meeting. Appellant filed suit on July-3, 1997. DISCUSSION We must determine the validity of the trial court’s entry of judgment on all eight counts of the complaint in favor of appellees at the end of appellant’s case.

Our major focus in this opinion will be on Counts I, II, and III, all of which rest on the equitable claim that appellees violated their fiduciary duties as trustees. We vacate the judgment entered on these counts, and remand the case to the circuit court for further ⁴⁴⁶ proceedings on these counts. We affirm the lower court’s judgment on Counts IV through VIII. I. Count I — Breach of Fiduciary Duty Appellant alleged several breaches of fiduciary duty by appellees, 4 and included repetitive allegations in his complaint.

We have distilled the alleged breaches into three separate categories, and discuss each separately. A. Entitlement to Accounting Appellant complains that appellees never provided a full accounting of the Trusts created under John’s will. Appellees contend that they had no obligation to provide an accounting to appellant either during the lifetime of Harriett or after her death. Alternatively, they claim that the documents they provided to appellant in April 1997, after her death, were a sufficient accounting of the Trusts.

Appellees rely on section 10.02 of John’s will, which provides: My Trustee shall be excused from filing any account with any court; however, my Trustee shall render an annual (or more frequent) account and may, at any other time, including at the time of the death, resignation, or removal of any Trustee, render an intermediate account of my Trustee’s administration to such of the then current income beneficiaries who are of sound mind and not minors at the time of such accounting. The written approval of such accounting by all of such income beneficiaries shall bind all persons then having or thereafter acquiring or claiming any interest ⁴⁴⁷ in any trust, and shall be a complete discharge to my Trustee with respect to all matters set forth in the account as fully and to the same extent as though the account had been judicially settled in an action or proceeding in which all persons having, acquiring, or claiming any interest were duly made parties and were duly represented. The trial court held that under the terms of the Trusts and applicable law, the trustees had no obligation to account to a remainderman such as appellant during the lifetime of the income beneficiary. 5 The trial court seemingly agreed with appellant that an accounting was due after death, but found that the documents provided by appellees after Harriett’s death sufficed. Specifically, the court said: [T]he Ferris, Baker Watt statements certainly show with respect to the stock portfolio [of] which much of this estate was comprised, indicates the transactions that took place, and also shows at the end [sic] of the taxable income.

So there certainly is a reference as to what income was derived in a particular year. We do not agree with appellees’ view that appellant is not entitled to request and obtain an accounting of the Trusts. The leading authorities on trusts are unequivocal in their articulation of the right of the remainder beneficiary to an accounting during the lifetime of the income beneficiary and after his or her death. Austin W. Scott and William F. Fratcher, The Law of Trusts, (Vol.

IIA 4th ed.1987) § 172 explains: A trustee is under a duty to the beneficiaries of the trust to keep clear and accurate accounts. His accounts should show what he has received and what he has expended. They should show what gains have accrued and what losses have been incurred on changes of investments. If the trust ⁴⁴⁸ is created for beneficiaries in succession, the accounts should show what receipts and what expenditures are allocated to principal and what are allocated to income.

If the trustee fails to keep proper accounts, all doubts will be resolved against him and not in his favor ... Not only must the trustee keep accounts, but he must render an accounting when called on to do so at reasonable times by the beneficiaries. Where there are several beneficiaries, any one of them can compel an accounting by the trustee. The fact that a beneficiary has only a future interest ... does not preclude him from compelling the trustee to account.

Id. (emphasis added). George Bogert, The Law of Trusts and Trustees, (Rev.2d ed.1983) § 961 takes a similar view: [T]he beneficiary is entitled to demand of the trustee all information about the trust and its execution for which he has any reasonable use____ If the beneficiary asks for relevant information about the terms of the trust, its present status, past acts of management, the intent of the trustee as to future administration, or other incidents of the administration of the trust, and these requests are made at a reasonable time and place and not merely vexatiously, it is the duty of the trustee to give the beneficiary the information for which he has asked. Both Scott, supra, and Bogert, supra, cite numerous cases in support of the rule that a remainder beneficiary is entitled to an accounting.

Scott, supra, § 172 at 454; Bogert, supra, § 973. Restatement (Second) of Trusts § 172, comment (b) states the rule in like terms: The beneficiary may by a proper proceeding compel the trustee to render to the proper court an account of the administration of the trust.... The trustee may be compelled [to] account not only by a beneficiary presently entitled to the payment of income or principal, but also by a ⁴⁴⁹ beneficiary who will be or may be entitled to receive income or principal in the future. Maryland law is consistent with the law of other states.

The Court of Appeals liberally construed the class of those beneficiaries who have a right to an accounting in the case of In Re Clarke’s Will, 198 Md. 266 , 81 A.2d 640 (1951). There, a remainder beneficiary sought an accounting and declaratory relief and alleged that the trustee planned to sell a farm that was a trust asset and apply the proceeds for the benefit of her husband, an income beneficiary of the trust. The Court held that the contingent remainderman had standing to seek an accounting, and explained: “If the petitioner has any interest at all he is entitled to invoke the court’s protection.” Id. at 273 , 81 A.2d 640 ; see also Baer v. Kahn, 131 Md. 17 , 101 A. 596 (1917). 6 In Shipley v. Crouse, 279 Md. 613 , 370 A.2d 97 (1977), the Court of Appeals articulated the general rule: While ... in the ordinary case, beneficiaries are entitled to receive ‘complete and accurate information as to the administration of the trust’ and ‘to know what the trust property is and how the Trustee has dealt with it,’ this is not absolute, if the trustee renders periodic reports showing collection of income and disbursements, if the trustee is acting in good faith and is not abusing his discretionary powers. Id. at 625 , 370 A.2d 97 (citations omitted).

The Shipley Court did not indicate that the rights of the plaintiffs, who were remaindermen, were more restricted because they had no immediate possessory interest. The statement of the rule in Shipley , however, was dictum, because the plaintiffs did not obtain the disclosures they desired. The Court held that a trustee’s duty to account did not require that the trustee ⁴⁵⁰ disclose the specifics of delicate negotiations with a potential buyer regarding the sale of a business owned by the trust, especially when remaindermen had previously expressed their agreement that the business be sold. Id. at 625-26 , 370 A.2d 97 .

Appellees argue that section 10.2 of the will relieves them from any obligation to account to a remainder beneficiary. This section allows the trustee to provide an accounting at any time, and provides that if such accounting is approved in writing by the then income beneficiaries, then the trustee is discharged with respect to the matters covered by the account. Appellees would have us apply this section to modify the common law obligation of a trustee to account. To our knowledge, no Maryland appellate decision has addressed the extent to which a decedent or testator may limit the common law duty of a trustee to account in a court of equity.

Nor do we find any statute or rule, addressing this point. Bogert, swpra, asserts that a trust beneficiary has a right to an accounting, notwithstanding language in the trust purporting to limit its obligation to account: A [testator] who attempts to create a trust without any accountability in the trustee is contradicting himself. A trust necessarily grants rights to the beneficiary that are enforceable in equity. If the trustee cannot be called to account, the beneficiary cannot force the trustee to any particular line of conduct with regard to the trust property or sue for breach of trust.

The trustee may do as he likes with the property, and the beneficiary is without remedy. If the court finds that the settlor really intended a trust, it would seem that accountability in chancery or other court must inevitably follow as an incident. Without an account the beneficiary must be in the dark as to whether there has been a breach of trust and so is prevented as a practical matter from holding the trustee liable for a breach. Bogert, supra, § 973 at 467.

In the present case we need not decide this interesting issue because we do not interpret section 10.02 in light of the will as a whole, to limit the ⁴⁵¹ trustees’ obligation to account under the present circumstances. When interpreting a will, we must gather the intention of the testator from the language of the entire will. See LeRoy v. Kirk, 262 Md. 276, 280 , 277 A.2d 611 (1971). Further, we must construe the provisions of a will to be consistent, rather than to be in conflict.

See Veditz v. Athey, 239 Md. 435, 448 , 212 A.2d 115 (1965). When section 10.02 is considered in light of section 10.08, the former cannot reasonably be construed to deny appellant an accounting based on Harriett’s consent to some prior accounting. Section 10.08 provides: Notwithstanding any other provision hereunder, no Trustee hereunder shall have a vote or otherwise participate in any decision regarding whether, and to what extent, any discretionary payment of principal or interest shall be made or allocated to or for such Trustee’s personal benefit or to or for the benefit of any person for whose support such Trustee may be legally obligated. Any such decision shall be made by the co-Trustee then serving, or if there is no such co-Trustee, then the Trustee shall appoint a co-Trustee to make such decision.

Clearly, if Harriett cannot participate in a decision to distribute principal to her, then her consent to such distribution cannot be considered binding upon a remainderman whose interest is adversely effected. Cf. Madden v. Mercantile-Safe Deposit & Trust Co., 27 Md.App. 17 , 339 A.2d 340 (1975) (any laches which could have been chargeable to income beneficiary regarding misconduct of trustee cannot be binding upon the remaindermen). Since appellant’s claim for accounting is based upon his contention that principal amounts were improperly distributed to Harriett, section 10.02 of the will does not bar his suit.

See also discussion in Section IB of this opinion. Nor do we interpret the provision in section 10.02 of the will that the trustees “shall be excused from filing any account with any court” to mean that the testator intended to remove the jurisdiction of a court of equity to require an accounting ⁴⁵² upon the reasonable request of a beneficiary. See Salter v. Salter, 209 Ga. 90 , 70 S.E.2d 453, 458 (1952). See also Bogert, supra, § 973.

Appellees suggested at oral argument that appellant was not entitled to an accounting in this proceeding because a court can only require an accounting if it assumes jurisdiction over the trust, and appellant did not follow the procedure under Maryland Rule 10-501 to request that the court do so. We do not agree that a petition for assumption of jurisdiction pursuant to Rule 10-501 is required in order that a court order an accounting, and find Baer, supra, instructive. In Baer the Court held that the trustee’s mere refusal to account did not justify his removal, but that if an accounting were necessary in order to ascertain whether the trustee is executing the trust fairly and without abuse of the discretionary power reposed in him, a Court of Equity, upon being applied to, should order such information to be given; but until that is done and it is found that the trustee is not administering the trust in good faith, or is abusing the discretionary power granted him under the will, the Court should not against his wishes, assume supervisory jurisdiction of the trustee’s discretionary powers. Baer, 131 Md. at 29 , 101 A. 596 .

What we glean from Baer is that seeking and obtaining an accounting will sometimes precede a request for a court to assume jurisdiction over a trust, and the results of the accounting may be the “reason for seeking the assumption of jurisdiction by the court ...” required under Rule 10-501. Thus, we hold that appellant was not required to petition pursuant to Rule 10-501 in order to obtain an accounting. In sum, we hold that appellant was entitled to an accounting during the life of Harriett and at her death, notwithstanding the language in section 10.02 of John’s will. B. The Information Furnished by the Trustees The trial court found that the documents provided by appellees in April 1997, were sufficient to meet any obligation ⁴⁵³ to account because they provided the recap, brokerage statements from the firms holding the estate’s securities, and a list of payments and receipts for the two-year period of the Family Trust.

We do not agree with the trial court’s conclusion that this information sufficed, because appellees still failed to provide certain critical information. This information is separated by category and discussed below. l. Allocations of Expenses and Receipts Between Income and Principal One of appellant’s complaints about the information furnished by appellees is that there was no allocation of receipts and expenses to either trust income or trust principal as required under Md.Code (1974, 1991 Repl.Vol.), §§ 14-201 et seq. of the Estates and Trusts Article (“Principal and Income Act”). Appellant’s expert witness testified that, based on the records provided, it appeared that the trustees had made no allocation; and therefore, the burden of all expenses was borne by the remainder interest.

Section 14-202 of the Principal and Income Act provides in pertinent part: (a) A trust shall be administered with due regard to the respective interests of income beneficiaries and remainder-men. A trust is so administered with respect to the allocation of receipts and expenditures if a receipt is credited or an expenditure is charged to income or principal or partly to each: (1) In accordance with the terms of the trust instrument, notwithstanding contrary provisions of this subtitle; (2) In the absence of any contrary terms of the trust instrument, in accordance with the provisions of this subtitle; ... Id. at § 14-202. The remaining sections of the Principal and Income Act set forth detailed rules as to how a trustee should allocate receipts and expenses between the income beneficiary and the remaindermen. ⁴⁵⁴ The parties have not directed us to, nor have we found, any clause in John’s will that would make the Principal and Income Act inapplicable.

Further, a trustee’s obligation to make allocations between income beneficiaries and remainder-men is an obligation well recognized in common law. See Berlage v. Boyd, 206 Md. 521, 532 , 112 A.2d 461 (1955); Scott, supra, § 172 at 452, and cases collected therein (“If the trust is created for beneficiaries in succession, the accounts should show what receipts and what expenditures are allocated to principal and what are allocated to income.”); Bogert, supra, § 970 at 377-78. The documents that appear in the record do not make any allocations of receipts or expenses to principal or income. Incpme tax returns do not suffice for this purpose because federal law regarding what is taxable income, and what expenses are deductible from income, differs from determination of income and principal under the Principal and Income Act.

Calvin H. Cobb, III, a lawyer specializing in estate and trust law, testified that he had reviewed all of the documents furnished by appellees, and was unable, based on that information, to reconstruct an accounting that made allocations between income and principal. Mr. Cobb testified that he “tried to recreate based on this information a proper accounting that would allocate income and principal [but there was] information that didn’t reconcile____” He observed that “it appears that rather than distributing net income to [Harriett], there was no effort to charge expense to income. They instead distributed gross income to [Harriett].” A major theme advanced by appellees in defense is that appellant, in presentation of his case, was unable to demonstrate precisely where and how the trustees failed to follow their obligations under applicable law or John’s will.