dissenting:
This case has more to do with burden of proof than it does with the law of trusts. When the time came for a hearing on the Hospital’s petition for surcharge, both parties arrived but no one presented any evidence. In my opinion, the petitioner had the burden of presenting a prima facie case to support the claim of breach of fiduciary duty. Until evidence sufficient to withstand a motion to dismiss was presented, the trustee had no obligation to present evidence in defense of the claim.
The majority opinion depends upon hyperbole to describe what the trustee did or did not do. For example, there is nothing to indicate the trustee “gave up her trusteeship” or “delegated” the “complete management” of trust assets to Charles. The only “evidence” is that investments were “made on behalf of the trust estate” by Charles. That is a far cry from a delegation of power or surrender of control, but most important, it certainly fails as a prima facie case of breach of trust.
Since the only “evidence” was paragraph 8 of the trustee’s second account and report, the relevant portions are set forth below:
8. From time to time the Trustee made investments ... in the money market and also in the purchase and sale of shares of stock listed on the New York Stock Exchange, the American Stock Exchange and the Over-the-Counter Markets____ All of said investments were made on behalf of the Trust Estate by a person qualified in that business, who was selected by and in whom the Trustee justifiably had the utmost trust and confidence. Without the knowledge or consent of the Trustee, said person received from said investments, and diverted to his own use, a total believed by the Trustee to aggregate $317,234.36 ($116,-696.55 on January 16, 1981 and $200,-537.81 on March 4, 1981). The trustee did not learn of said diversions until long after they occurred. No part of the amount so diverted had been returned or paid to the Trustee or the Trust Estate____
(Emphasis added.) It is from these allegations and recitals, absent any evidence, that the majority finds a prima facie case for breach of fiduciary duty occurred. I am unable to agree that the provisions of paragraph 8 come even close to a prima facie case for surcharge of the trustee in the amount of $317,234.36.
Instead of presenting evidence at the hearing, counsel stated that trust assets were placed in Charles’ hands and that he selected the investments, which consisted of stock on the New York and American stock exchanges and over-the-counter markets. There is nothing about this which would require on appellate court to conclude, in the face of a contrary trial court ruling, that a breach of trust had occurred. Under trust powers clearly allowing it, the trustee employed her nephew, Charles Gardiner, an investment counselor and stockbroker with Dean Witter Reynolds, to invest the assets of the trust in securities, presumably to hold them in a street account in the name of trustee in order to facilitate purchase and sale. It is not inappropriate to point out that this is precisely what individual trustees frequently do in carrying out the investment duties given them by the trust instrument, particularly in instances where they do not possess the expertise to select trust investments for themselves.
One thing should be clear at this point. The issue before the court is not whether the trustee met her burden to account for funds belonging to the trust. The trustee did meet this burden. The issue is whether the trustee improperly allowed Charles Gardiner, a stockbroker, to have such access to the investment account at the brokerage house that he could divert the funds to his own use. Since the success of that claim depends upon the showing of a *526breach of trust, the party making the contention must prove a prima facie case. In this, the petitioner has failed, because the mere statements made in paragraph 8 together with the stipulation of the parties, do not support it.
Generally, a trustee is presumed to have acted in good faith and to have performed his duties under the trust. Under this presumption, the burden of proving a breach of trust rests on the person asserting the breach. Goldman v. Rubin, 292 Md. 693, 441 A.2d 713 (1982); Parker v. Pine, 617 S.W.2d 536 (Mo.App.1981); Gregory v. Moose, 266 Ark. 926, 590 S.W.2d 665 (1979); Elmhurst National Bank v. Glos, 99 Ill. App.2d 74, 241 N.E.2d 121 (1968).
In Lopez v. Lopez, 250 Md. 491, 243 A.2d 588 (1968), the court stated:
[T]he person who challenges the conduct of a trustee, must first allege that the trustee has a duty and has been derelict in the performance of this duty, and offer evidence in support of this allegation. Then, and not until then, does the trustee have the burden of rebutting the allegation. In the absence of such proof, there is no duty on the trustee to prove a negative: i.e., that he has not been derelict in the performance of his duties.
Id., 243 A.2d at 594. In Lopez the court relied on Bogert, Trusts and Trustees, (2d Ed.1962) § 871, which states:
A beneficiary seeking to obtain relief for a breach of trust must plead and prove facts which show the existence of a fiduciary duty and the failure of the trustee to perform it, and that consequently the court should grant the requested remedy. If he seeks damages, a part of his burden will be proof that the breach caused him a loss. Evidence which merely shows a decrease in the value of the trust property, without showing that the trustee wrongfully caused the shrinkage, does not make a case. If the beneficiary shows a prima facie case, the burden of contradicting it or showing a defense will shift to the trustee.
Thus, before the duty to go forward with evidence will shift to the trustee, the beneficiary must plead and prove a prima facie case consisting of (1) duty, (2) breach of that duty, and (3) damages proximately caused by such breach.
Before evaluating the words of paragraph 8, several factors must be kept in mind. First, the trustee powers specified in the will authorized the trustee to hire an investment advisor and a stockbroker. That is what the trustee did here. There is no dispute that Charles Gardiner was qualified since that was his work at Dean Witter Reynolds. Moreover, there is no question that the trustee was justified in placing her confidence in him because the will itself named him as a successor trustee.
This brings us directly to the words of paragraph 8. The trustee states that investments were made on behalf of the trust estate by a person qualified in that business (Charles Gardiner). So far there is nothing to suggest a breach of trust. Next, the trustee states that without her knowledge or consent, Charles Gardiner diverted funds from the investments to his own use. Once again, there is nothing to suggest (let alone prove) a breach of trust. This is followed by a statement that the trustee did not learn about the diversions until long after they occurred. It is pure speculation as to why the trustee did not learn about it. It cannot be said that this statement is an expression of fault by the trustee which justifies a surcharge. In my opinion, the petitioner seeking the surcharge must make a prima facie case of fault. Were we to speculate, we might find good reason for the trustee not to have knowledge of the diversions of funds. Let the claimant prove a prima facie case. Finally, paragraph 8 goes on to say that no part of the diverted funds has been returned or paid to the trustee or the trust estate. There is no breach of trust in this, since, for all that the proof shows, the trustee has made reasonable efforts to recover the funds. Once again, there is no evidence one way or the other.
*527The majority has referred to the action of the trustee as an improper “delegation” of the “complete management” of trust assets. There is no evidence of this and I disagree with the characterization. There is no proof the trustee did not retain control and management of the trust assets. If the trustee authorized Charles Gardiner to make investments on behalf of the trust, there is no evidence to suggest the investment choices were not approved by the trustee.
In conclusion, this is not a case seeking to have a trustee reconcile receipts and expenditures set forth in an account. It is a case where petitioner has asserted fault against the trustee, yet took not one step to prove it. It is a curious case indeed where the party making the assertion comes to trial but fails to offer any evidence. In my opinion, the trial court correctly rejected the claim and I would affirm the order.