dissenting.
The Court of Appeals, having properly concluded that the minor plaintiff, Dale Fortune, could not recover individually based on the trial court’s erroneous determination that he was a joint life tenant in the trusts, allowed the amount of the jury verdict in his favor to stand. In its obvious attempt to reach what it considered a just result, that court advanced a different theory for a cause of action on behalf of the trusts, found that the trusts had suffered the damages in the same amount of $413,744.76 that the jury had awarded to Dale Fortune, and directed that judgment be entered in favor of the trusts. Because this case was neither argued nor defended on the basis of liability or damages to the trusts but only to Dale Fortune individually, the Court of Appeals acted beyond the scope of its authority in transferring the jury award to the trusts. Pursuant to the division of jurisdiction among the courts of this state, the Court of Appeals is intended to be a court of review and has no jurisdiction to determine facts not conceded or conclusively established at the trial court level. “[T]he Court of Appeals [has] jurisdiction to review upon appeal decisions of the several courts of the General Court of Justice . . . upon matters of law or legal inference . . . .” N.C.G.S. § 7A-26 (1967) (emphasis added). See Putnam v. Lincoln Safe Deposit Co., 191 N.Y. 166, 83 N.E. 789 (1908). When a case is governed on appeal by a theory different from the one presented at trial, the parties have not been afforded notice on which to present or defend their interests. A reviewing court must decide a case on appeal under the same theory presented at trial. Feibus & Co. v. Construction Co., 301 N.C. 294, 297-302, 271 S.E. 2d 385, 388-90 (1980); State v. Brooks, 275 N.C. 175, 179, 166 S.E. 2d 70, 72 (1969); In re Drainage, 257 N.C. 337, 343, 125 S.E. 2d 908, 912 (1962).
*153Plaintiff Dale Fortune’s interest in the estate is limited to the provisions of the residuary trust created by the will of Robert L. Fortune and constitutes a mere expectancy. The residuary trust provides that, during the life of plaintiffs mother, the trustee in its “absolute discretion” can accumulate all or any part of the income of the trust or distribute all or any part of it to plaintiffs mother, to plaintiff, or to any issue of plaintiff if he should die before his mother. The trustee is also given the power to distribute the principal of the trust in the same discretionary manner. At the termination of the trust, its assets are to be distributed to Dale Fortune if then living, otherwise to his surviving issue or, if none, to the heirs of Robert L. Fortune under the provisions of chapter 29 of the North Carolina General Statutes (the North Carolina Intestate Succession Act).
The issues submitted to the jury were erroneous. They allowed a recovery, not to the trust, but to Dale Fortune individually. Pursuant to the trial court’s instructions, a jury awarded damages of $413,744.76 directly to him. By awarding Dale Fortune damages now, before he is entitled to receive the trust assets, assuming he ever will be so entitled, the court ignored the terms of the trusts created by Mr. Fortune’s will. This it may not do. A court’s limited power to modify the terms of a trust may not be exercised for the purpose of destroying the terms of the trust or defeating the purpose of the donor. Penick v. Bank, 218 N.C. 686, 12 S.E. 2d 253 (1940). I disagree in the strongest possible way with the majority’s conclusion that plaintiff was entitled to sue and recover his individual damages caused by defendant’s breach of fiduciary duty, and I therefore dissent.
Dale Fortune has no “right” to the income or to the principal while his mother lives —he has only a mere expectancy. A beneficiary may not maintain an action at law to recover individually for a breach of duty to the trust unless “the trustee is under a duty to pay money immediately and unconditionally to the beneficiary.” Restatement (Second) of Trusts § 198 (1959). *154Johnson v. Johnson, 120 Mass. 465, 466 (1876). See Restatement (Second) of Trusts § 198 and comment d at 436 (1959) (if trustee misappropriates money which it is his duty to continue to hold in an active trust, the beneficiary, not being entitled to immediate payment, cannot maintain an action at law against trustee). The majority cites Ingle v. Allen, 69 N.C. App. 192, 317 S.E. 2d 1 (1984), and several cases from other jurisdictions to support its assertion that a beneficiary who has been damaged by the negligence of a fiduciary should have the remedy of suing an executor or trustee for damages in addition to any other remedy he may have. These cases can readily be distinguished from the case sub judice when one examines the actions of the trustee which led to the suit. It has been a longstanding rule that the trustee must perform an affirmative act in repudiation of the trust in order for the individual beneficiaries to be entitled to a cause of action.
*153It is well settled that a cestui que trust cannot bring an action at law against a trustee to recover for money had and received while the trust is still open; but when the trust has been closed and settled, the amount due the cestui que trust established and made certain, and nothing remains to be done but to pay over money, such an action may be maintained.
*154As long as the relation of cestui que trust and trustee is admitted to exist, and there is no assertion of adverse claim or ownership by the trustee, no refusal or demand to comply with the terms of the trust, and no repudiation or disavowal of the trust, no cause of action rests in the cestui que trust.
76 Am. Jur. 2d Trusts § 589, at 796-97 (1975).
A beneficiary with no immediate and unconditional right to trust funds may only maintain an equitable action to compel the trustee to redress the breach of trust. Restatement (Second) of Trusts §§ 197, 198 and comment c at 436 (1959). The rationale behind this rule is that a beneficiary with no immediate and unconditional right to trust proceeds cannot establish individual damages with any degree of specificity. When pecuniary damages are sought, the plaintiff must present evidence of their existence and extent and some data from which they may be computed. Norwood v. Carter, 242 N.C. 152, 87 S.E. 2d 2 (1955); The Asheville School v. Ward Construction, Inc., 78 N.C. App. 594, 337 S.E. 2d 659 (1985), disc. rev. denied, 316 N.C. 385, 342 S.E. 2d 890 (1986).
Plaintiff Dale Fortune was not a proper party to bring suit and could not recover individually against defendant trustee under the circumstances presented here. The Court of Appeals correctly recognized that Dale Fortune could not recover damages individually, but chose the inappropriate remedy of awarding his *155individual recovery to the residuary trust created under the will of Robert L. Fortune. The majority of this Court erroneously holds in part that Dale Fortune was entitled to sue individually for damages caused by trustee’s breach of fiduciary duty and further holds that, on retrial of the damages issue, his individual damages may be proved with sufficient certainty for a jury’s determination. I disagree with both conclusions. If Dale Fortune, without removal of the bank as trustee, is permitted to sue individually for damages, a conflict of interest continues to exist. The bank continues as trustee, and its interest as such should be to recover the losses for all possible beneficiaries of the trusts. It is at the same time executor of the estate, in which role it will contend that it is not liable for any damages to anyone. Likewise, Dale Fortune, while acting as plaintiff, would also have his interest as one of the beneficiaries of the trusts represented by defendant bank in its role as trustee. The majority’s decision makes no provision for the resolution of this conflict of interest.
As a general rule the damages resulting from a breach of trust by a trustee are to be paid into the trust fund, not directly to the trust beneficiaries:
A [trustee’s] failure to perform any of the duties placed upon him by common law, statute or trust instrument, if loss is caused thereby, will give the beneficiaries, a co-trustee or a successor trustee a right to secure from the court of equity a decree that the wrongdoing trustee pay into the trust fund the amount of damages suffered.
G. Bogert, Trusts § 157 (6th ed. 1987) (emphasis added).
While the majority correctly concludes that the damages issue was not properly presented to the jury at the trial court level, it erroneously holds that plaintiff Dale Fortune’s individual damages may, on retrial, be proved with sufficient certainty that a jury may determine them. Dale Fortune clearly sought individual recovery for monetary damages based on defendant’s alleged breaches of fiduciary duty as executor of the estate. The case was tried and argued by both parties on the theory that Dale Fortune was entitled to an individual recovery, and the issues submitted to the jury were so formulated. It is my belief that on retrial Dale Fortune cannot provide evidence of damages to him individually because, by the terms of the trust, damages to his expectancy in *156the residuary trust cannot be actuarially computed. Dale Fortune has the burden of proving damage to his interest under the residuary trust in order to recover compensatory damages. “The burden is always upon the complaining party to establish by evidence such facts as will furnish a basis for their assessment, according to some definite and legal rule.” Norwood v. Carter, 242 N.C. 152, 156, 87 S.E. 2d 2, 5. Dale Fortune cannot present evidence tending to show that the trustee will ever exercise its discretion to pay out benefits to him during his lifetime or, if so, in what amount. Nor can he produce actuarial evidence to establish the range of possibilities under which his remainder would vest or the value of his interest when it would vest. Neither N.C.G.S. § 8-46 (mortuary tables containing life expectancies) nor N.C.G.S. § 8-47 (annuity tables containing annuity valuation factors) would be of assistance in proving when the trustee might exercise its discretion.
Dale Fortune will not be able to establish values with any degree of accuracy because of the nature of his interest under the provisions of the residuary trust, which is merely speculative at best. His interest in the principal at the termination of the residuary trust upon his mother’s death is not readily ascertainable because it is a mere expectancy. His interest cannot be valued until the death of his mother, if he survives her. Brown v. Guthery, 190 N.C. 822, 130 S.E. 836 (1925); 2 N. Wiggins, Wills and Administration of Estates in North Carolina § 280 (2d ed. 1983). His income interest in the residuary trust is speculative because his interest in the trust income is in the uncontrolled discretion of the trustee. The same is true of his interest in the principal of the residuary trust during the trust’s existence. By definition, under a discretionary trust the trustee has discretion whether, and to what extent, to apply trust income or principal to, or for the benefit of, the beneficiaries. Lineback v. Stout, 79 N.C. App. 292, 339 S.E. 2d 103 (1986); N.C.G.S. § 36A-115(b)(l) (1979).
In its opinion, the majority asserts that a jury should be able to determine what would have been the need of Betty Fortune in the past and what it will be in the future to have a part of the income from the residuary trust, taking into account her income from the marital trust (which is at the present time unfunded) as well as other resources she may have. The majority fails to look beyond Betty Fortune’s immediate needs, however, or to consider *157the very real possibility that she could, for example, suffer an extensive long-term illness or even a catastrophic illness or disease requiring untold amounts of care and the accompanying financial demands which would conceivably cause the trustee to deplete the assets of both trusts for her benefit. Because of such contingencies, a jury is not capable of determining with any degree of accuracy what the income to Dale Fortune from the family trust will be or what will be accumulated and remain for his eventual benefit. Dale Fortune cannot establish the value of his interest in the residuary trust or his damages from losses incurred by the trust. Damages which are uncertain and speculative may not be recovered. Similarly, where there is no evidence as to the amount of damage, or where the amount is extremely uncertain, recovery should be denied. Midgett v. Highway Commission, 265 N.C. 373, 378, 144 S.E. 2d 121, 125 (1965); E. Hightower, North Carolina Law of Damages §§ 2-5, 2-7 (1981). Even if Dale Fortune were a proper party, because of the contingencies referred to above, I conclude that he cannot carry his burden of proof on the issue of individual damages.
The trustee is charged with a responsibility to the beneficiaries to use reasonable care and skill to preserve the trust property. Accordingly, it is the duty of the trustee to bring such actions as are reasonably necessary for the protection of the trust estate. Id. If a third party has covenanted to transfer property to a trust, it is the trustee’s duty to take reasonable steps to enforce such a covenant. Restatement (Second) of Trusts § 177, at 383 (1959).
It is the trustee’s duty to preserve and administer the trusts, including the duty to bring suit against the executor of the estate for wasting assets which should go to the trusts. At least by the time the dispute concerning the sale of the automobile dealerships arose, the conflict of interest in defendant bank serving as both executor of the estate and trustee of the trusts became obvious. Either the widow (beneficiary of one trust) or Dale Fortune (having an expectancy in the other trust) could have and should have sought the discharge of defendant bank as trustee and the appointment of a substitute trustee to bring this action to recover as against defendant bank as executor for damages to both trusts. As the case is going back for retrial, this can still be accomplished, and I believe it should be so ordered by this Court.
*158There are yet other significant reasons for having this lawsuit prosecuted by a substitute trustee rather than by Dale Fortune. First, a suit filed on behalf of the beneficiaries and pursued by a substitute trustee would not only permit the preservation of Dale Fortune’s expectancy in the assets recovered as damages, but would also enable the trustee to recover on behalf of the trusts for the widow’s benefit. As a result of the substitution, the entire loss incurred by both trusts would be recoverable. Although, as the majority points out, the individual claim of the widow is not before us, on retrial of this action wherein a substitute trustee is the plaintiff, the widow’s damages under the terms of the trusts would indeed be recoverable and she would not then be barred from receiving them. The fact that the trusts were never funded would not prohibit the widow or any other beneficiary from recovery. Restatement (Second) of Trusts § 176, at 382 (1959).
In the case sub judice, the bank is to this day continuing to act as both trustee and executor. The statute of limitations is tolled while the executor of the estate and the trustee of the companion trust are the same entity, and will therefore not begin to run in this cause of action until the conflict of interest of the bank is cured.
It is an underlying principle in the application of the statute of limitations that before it can begin to run there must be some one in existence by whom, and a different person against whom, the claim may be enforced. ... It is the general rule that where one person represents both sides of conflicting claims the statute does not run.
Bremer v. Williams, 210 Mass. 256, 258, 96 N.E. 687, 688 (1911). See also Yager v. Liberty Royalties Corp., 123 F. 2d 44 (1941); G. Bogert, Trusts and Trustees § 951 (2d ed. 1982). It follows from the above analysis that neither Dale Fortune nor his mother would be barred from obtaining damages through the trust because the bank is guilty of self-dealing and is therefore proscribed from claiming lapse of time as a defense. Second, assuming arguendo that Dale Fortune’s individual damages could be ascertained, the amount of these damages would be minuscule in comparison to the panoply of damages available if the trustee were the plaintiff. It is thus not in Dale Fortune’s best interest to bring *159suit for his individual damages. He would be far better off to have an expectancy in the significantly larger recovery available to a substitute trustee.
This action should be remanded for the removal of defendant bank as trustee, the appointment of a substitute trustee, and a new trial on all issues. By suggesting in this dissenting opinion how I believe this lawsuit should be prosecuted, I do not mean to express an opinion as to whether any defenses are or are not now available to the defendant bank should a new complaint be filed by a properly substituted trustee.
Chief Justice ExuM and Justice WHICHARD join in this dissenting opinion.