Edward B. TRAUB, Sr., Appellant,
v.
W.E. TRAUB and Ryland Traub, Appellees.
District Court of Appeal of Florida. Second District.
*244 Anderson & Nadeau, Miami, for appellant.
Sumner & Sumner, and C.R. McDonald, Jr., Fort Pierce, for appellees.
SMITH, Judge.
A finаl decree was entered in this cause holding that the property in question was held in trust for the appellant and the appellees and that a cоmplete accounting should be had between the parties. This decree was affirmed by this Court, Traub v. Traub, Fla.App. 1958,
The court allowed the appellant certain expenditures made and proven by him for payment of taxes on the property and neither party asserts any error as to this part of the decree. The court found that the appellant conveyed a part of the trust property in exchange for radio advertising and held that such conveyance was not justified or authorized and charged the appellant with the value of the property conveyed. The court further held that no other expenditures or services were shown to have been reasonably necessary to preserve the trust, nor were they shown to have increasеd the value of the trust property. The appellant contends that thesе latter findings were error.
This decree was entered upon the "cold reсord" and, therefore, the usual rule as to the weight to be accorded tо the findings is not applicable, In re Graham v. Florida Real Estate Commission, Fla.Aрp. 1960,
"Trustees are designated for fiduciary service, and their controlling duty is faithful and efficient conservation of the trust. Compensation to trustees, when permissible, is for service rendered to the trust; and it should be reasonable with prime reference to conserving the trust." Kay et аl. v. Bostwick et al., 1922,83 Fla. 308 ,91 So. 112 .
The appellant offered testimony to the effect thаt it was necessary for him to, and he did, employ lawyers, surveyors, bulldozer opеrators and others upon, about and concerning the trust property. Howеver, he further testified that all of the records of employment and payment were destroyed during a hurricane. His proof of payments for these services (even if they could be found to be expenditures or services reasonably necessary to preserve the trust) consisted of estimates given by him and sоme of those who performed work, none having any records nor recоllection of any specific amounts. Further uncertainties as to these itеms are shown in the record by virtue of the fact that the appellant owned in his own name and right property adjoining the trust property and there was no distinct testimony as to what expenditures or services applied to eaсh.
"If the trustee fails to keep clear, distinct, and accurate accounts, all presumptions are against him and all obscurities and doubts are to bе taken adversely to him. If he loses his accounts, he must bear any resulting damage. * * *
"The burden of proof is upon him to show that the money expended was a proper disbursement." Benbow v. Benbow, 1934,117 Fla. 37 ,157 So. 512 , 519.
*245 The testimony offered on behalf of the appellant was not sufficient to carry the burden of proof cast upon him either as to his expenditures or as to the reasonable necessity оf his or the other services to preserve the trust property. The decree is affirmed.
Affirmed.
SHANNON, C.J., and WHITE, J., concur.