Florida Nat. Bank Trust Co. v. Brown, 47 So. 2d 748

Florida Nat. Bank Trust Co. v. Brown

47 So. 2d 748 | Fla. | 1949

Lead Opinion

William Wallace Sikes, prior to his death on April 9, 1906, owned Lots 7 and 8 of Block 77, North, according to a map or plat of the City of Miami as prepared by A.L. Knowlton, a civil engineer. On Lot 8 was situated two small business houses which were rented from time to time but the houses were later removed and the lot was converted into and used as a parking lot. Situated on Lot 7 is a rooming house consisting of approximately nineteen rooms and for many years past has been used as a rooming house.

William Wallace Sikes was living in the rooming house situated on Lot 8, supra, with his wife, Frances Evelyn Sikes, and four daughters at the time of his death in 1906. The names of his daughters were (1) Ella Elizabeth (Bessie) Sikes, born in 1894; (2) Cora Della Sikes Brown, a widow; (3) Mamie Lorena Sikes McKinstry; (4) Alice Frances Sikes Rose, who died a widow, without issue, but left her entire estate by will to her sister Cora Della Sikes Brown for the balance of her natural life and upon her death then to the son of Cora Della Sikes Brown, to-wit; William Wallace Brown. Mamie Lorena Sikes McKinstry died and left as heirs her husband, Paul McKinstry, and daughter Jack Allen Hannon, wife of John Glenn Hannon. Decrees pro confesso were entered against several of the defendants and the issues here are between Ella Elizabeth (Bessie) Sikes and her sister and nephew, Cora Della Sikes Brown and William Wallace Brown.

Frances Evelyn Sikes, widow of William Wallace Sikes, several years after the latter's death, married Charles Farmer Bailey and the parties lived together for some time as husband and wife but they were divorced, as shown by the record, on the 28th day of January, 1919. The heirs of the late William Wallace Sikes conveyed all their undivided interest in and to Lots numbered 7 and 8 of Block 77, supra, to their mother, Frances Evelyn Sikes, about the year 1917, and she continued to own said property until the time of her death on May 3rd, 1944. It is not disputed that Bessie Sikes lived with her mother in the rooming house situated on Lot No. 7, supra, from the year 1915 continuously until the date of her mother's death in 1944, a period of approximately 29 years.

Frances Evelyn Sikes, widow, at the time of her death, owned two lots fairly well located in the City of Miami. One of the lots, for a number of years, was used for a parking lot and situated on the other was a cheaply constructed rooming house, now old and dilapidated. It was constructed almost entirely of wood, while one section *750 was built of stone. It was never intended as a high class rooming house but suitable for elderly tourists going to Miami in the tourist season not financially able to pay prices demanded by high class hotels and boarding houses. According to the record, the old rooming house was highly respectable and operated entirely by Mrs. Sikes and daughter Bessie, except that period of time when one of the other daughters was present.

Bessie Sikes in 1906, at the time of her father's death, was twelve years of age and practically blind but had a vision of about 20% in one eye. It was impossible for her to attend the public schools of Dade County but arrangements were later made for her to attend the school for the blind at St. Augustine, where she graduated at the age of 21. She learned to write but it was very difficult for her to read and when so doing newspaper print had to be placed close to her right eye as her left eye was of but little service to her. She learned to type and worked in the office of Jackson Memorial Hospital for a short time after graduation. The State of Florida paid all her expenses at St. Augustine, inclusive of transportation to and from Miami. It appears by the record that she received monthly payments under the State Welfare Program for the blind. Cora Della Sikes, Mamie Lorena Sikes and Alice Frances Sikes each married, left the old dilapidated rooming house and established homes of their own in the City of Miami or elsewhere. Bessie never married but remained continuously with her mother in the rooming house after her return from the School for the Blind in about 1915 until the death of her mother, Frances Evelyn Sikes, in May 1944.

On August 10, 1943, about nine months prior to her death, Frances Evelyn Sikes executed her last Will and Testament and by Article III thereof devised and bequeathed unto Ella Elizabeth (Bessie) Sikes her entire estate, both real and personal, to have and to hold, in trust, for the full term of her natural life, and had the power under the terms of the will to sell the non-income producing property referred to in the will. The will was duly probated and Bessie Sikes by a court order was appointed executrix of her mother's estate. Mrs. Sikes, at the time of the execution of the aforesaid will, was about 75 years of age. The appraised value of the estate was fixed at approximately $20,000.00.

Less than sixty days prior to her death Mrs. F.E. Sikes wrote a letter to her attorney in the City of Miami substantially as follows:

"Mr. Price I can't tell you what my daughter services have been and are not to me. She has taken care of all business she has carried on for years. I couldnt have remained in business without her help and the place would have been lost. She has been on call night an day every since she finished blind school. therefore she is entitled to a mortgage to cover all drudgery she has gone through with all her life that no one would have done at any price the mortgage not less than 30 thousand, please * * * deeds in her name.

respectfully Mrs. F.E. Sikes."

Pursuant to the above letter a promissory note, under seal, for the sum of $20,000.00, dated Miami, Florida, March 20, 1944, payable to Ella Elizabeth (Bessie) Sikes on demand was signed and executed by Frances Evelyn Sikes. The payment of the demand note was secured by the execution of a mortgage on the same date encumbering Lots numbered 7 and 8 of Block 77, North, supra. The two instruments appear to be in proper legal form and after execution, the two instruments were delivered to attorney Price of said city, who had the same recorded in the Clerk's office and returned to him as attorney for Mrs. F.E. Sikes. Appearing on the face of the mortgage is the notation:

"This mortgage is executed for the purpose of re-imbursing the mortgagee in part for services rendered by her in looking after the mortgagor, assisting her in the operation of a rooming house, acting as her general housekeeper and nurse, and shall take precedence over any Will heretofore executed by the mortgagor." *751

The change in the amount of the note and mortgage from $30,000.00 as requested by Mrs. Sikes to the sum of $20,000.00 was arrived at by a telephone conversation had between Mr. Price and F.E. Sikes prior to the execution thereof.

Bessie Sikes, through counsel, filed suit for foreclosure of the above note and mortgage but subsequently caused the same to be dismissed, and immediately by an appropriate written instrument assigned and transferred the demand note in the sum of $20,000.00 and the mortgage securing the payment thereof to The Florida National Bank and Trust Company of Miami, Florida, and the bank, as trustee for Bessie Sikes, filed an amended bill of complaint against the appellees praying for a foreclosure of the mortgage. A pertinent allegation of the amended bill of complaint as to the many details over the years as performed by Bessie Sikes relied upon for the consideration of the note and mortgage is viz:

"Plaintiff further shows unto your Honor that for many years prior to the execution of the mortgage the said Ella Elizabeth (Bessie) Sikes lived with her mother, Frances Evelyn Sikes, in a small portion of the rooming house aforesaid; that she devoted her entire time and much painful labor to the operation, maintenance and upkeep of said rooming house, attending to the renting of rooms, the making of beds, the cleaning of the premises and such other services as are usually performed by a maid; that the said Ella Elizabeth (Bessie) Sikes is partially blind, but was able to see well enough to look after the rental and care of the rooms in said rooming house, and that the said Frances Evelyn Sikes would never have been able to operate said rooming house without the assistance of her daughter, Ella Elizabeth (Bessie) Sikes; that all of the Sikes daughters, except Ella Elizabeth (Bessie) Sikes, married and established domiciles in some other portion of the City of Miami or in the State of Florida, but that the said Ella Elizabeth (Bessie) Sikes lived unmarried with her mother, nursed her in sickness and in health and superintended the operation of the rooming house, rendering all physical services that were necessary from about 1917 down to the date of the execution of said mortgage; that Frances Evelyn Sikes died in May, 1944, substantially two months after the date of the execution of the mortgage aforesaid; that the clause appearing in the mortgage referring to the services rendered by the said Ella Elizabeth (Bessie) Sikes was inserted under the express written direction of the said Frances Evelyn Sikes; that the services rendered by the said Ella Elizabeth (Bessie) Sikes constituted an adequate consideration for the execution and delivery of said mortgage."

The defendants-appellees filed a motion to dismiss the amended bill of complaint to foreclose on twenty grounds in the court below and one of the grounds was that the amended bill of complaint and exhibits contained no equity. The motion to dismiss was overruled in the court below and this ruling was reviewed here on petition for writ of certiorari under interlocutory rule number 34, and the petition of the defendants-appellees was denied by this Court under date of April 14, 1948. See Fla., 36 So.2d 807. Question one of petition for certiorari, as shown by the brief, in effect contend that the allegations of the amended bill of complaint were legally insufficient to establish a lawful consideration. The language of the brief is viz:

"It is respectfully submitted that since in this case the amended bill of complaint and the instruments sued upon their face that the sole consideration for the subject mortgage and note was the past services of the daughter to the mother and no suggestion of any kind appears that such services were rendered pursuant to a prior or concurrent understanding between the parties that the same were to give rise to a legal obligation, the legal presumption as to the gratuitous character of such services must prevail, and the Chancellor should have dismissed the bill forthwith with prejudice, because if every allegation therein were proved by the most conclusive proof there could be no recovery."

* * * * * * *752 "If the Court accepts, as we believe it must, our view as to the unenforceability upon its face of the mortgage here involved for the reasons set forth earlier in this argument, the question presently discussed will have relevance only in determining whether or not any purpose would be served in permitting the further amendment of the bill of complaint so as to set forth a possible claim that the services involved were rendered pursuant to a prior or concurrent agreement that the same should be the subject of compensation by the mother to the daughter. If by her receipt of the benefits under the will, the beneficial plaintiff is wholly precluded from asserting the claim against the estate which she now makes, it would seem to serve no useful purpose to permit attempts to bolster the amended bill by further amendments."

It is the writer's view that when the cause was considered here on petition for certiorari to review the order of the court below on motion of the defendants-appellees to dismiss the amended bill to foreclose, our denial of the petition placed in repose, in the then state of the pleadings, the legal sufficiency of the consideration of the note and mortgage and the enforceability thereof by the amended bill of complaint. The above conclusion rests upon the following authorities: Section 674.27, F.S.A., provides: "Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration; and every person whose signature appears thereon to have become a party thereto for value." Section 674.28: "What constitutes value. Value is any consideration sufficient to support a simple contract. An antecedent or pre-existing debt constitutes value; and is deemed such whether the instrument is payable on demand or at a future time." In the case of Taylor v. American National Bank, 63 Fla. 631, 57 So. 678, 685, Ann.Cas. 1914A, 309, we held: "The general doctrine is that the note is the principal thing, and the mortgage an accessory, and that the transfer of the debt ipso facto carries with it the security." "The holder of the note may discard the mortgage entirely, and sue and recover on the note."

The case of Daniels v. Mercer, 105 Fla. 362, 141 So. 189, involved a deed or conveyance by the owner of a homestead to three of his children and excluded other adult children and their descendants. The wife of the owner joining in the conveyance died and the husband married twice thereafter. The deed recited: "It is understood by and between the parties hereto that the parties of the first part shall use and enjoy the said property during their life or lives, and at the death of both of the parties of the first part then the parties of the second part shall have the right to the immediate possession of the said property, and each and every part thereof and not before". One of the excluded grantees from the deed brought suit in equity to cancel the deed on the ground that the grantees in said deed did not pay a consideration for the described property. We sustained the deed and held that the title passed by the conveyance to the named grantees. In Bennett v. Senn, 106 Fla. 446, 144 So. 840, we held that where a mortgage appeared under seal a sufficient consideration may be presumed. In Wise v. Wise, 134 Fla. 553, 554, 184 So. 91, we held that a deed to property from a father to a son is not void for want of consideration, because a deed, being under seal imports a consideration at law. "A recital of consideration in deeds conveying property to grantor's children precluded cancellation on ground that deeds were without consideration."

The case of Parrish v. Robbirds, 146 Fla. 324, 200 So. 925, 926, involved an attack on a deed for the lack of a valuable consideration. The deed was from the owners of 320 acres of land to two of their daughters, to the exclusion of other children above 21 years of age. The deed contained the following recital: "It is a part of this conveyance, and a distinct condition of same, that said C.C. Robbirds and his wife shall remain in possession and control of the above property until the death of C.C. Robbirds, and this conveyance shall not become fully and completely absolute until *753 after the death of C.C. Robbirds; but at that time it shall vest absolute title in the grantees herein." In a suit to partition the property it was contended that the deed, supra, was void as there was no consideration of value therefor. We sustained the deed and in part said: "that the land was conveyed in return for services rendered during the last days of the grantors, in one case lasting several months and in the other several years, and that during the period the grantees lived with their parents and cared for them, they actually performed work upon the property."

The recent case of Cunningham v. Weatherford, 159 Fla. 864,32 So.2d 913, 915, was a suit on a promissory note in the sum of $20,000.00, and the amended declaration alleged that the real consideration for the $20,000.00 note was the looking after the maker's home, preparing his meals, nursing him in sickness and otherwise caring for him. It was alleged that the payee for more than two years after the agreement was made and before the note was executed rendered services, and the services continued to the time of the death of the maker of the note. It was contended here that the note could not be enforced because it was without consideration. We held against the contention and said: "We know of no better consideration for a note. If the consideration so alleged is proven, the note should be paid."

The defendants-appellees answered the amended bill of complaint and the pertinent issues made thereby are substantially viz: (1) they expressly denied that the note and mortgage sued upon were executed and delivered "for a valuable consideration"; (2) that the note and mortgage were executed without consideration and the alleged services rendered by Bessie Sikes to her mother were without contract or agreement for any compensation; (3) the execution of the note and mortgage was by Bessie Sikes procured by the exercise of undue influence upon her mother; (4) that Bessie Sikes, for various reasons, was estopped from the maintenance of the suit. A counter-claim was filed and other issues made by the pleadings, but they are not material on this appeal as no cross-assignments of error on this appeal are based on any rulings of the court incident thereto. A Special Master was appointed, heard all the testimony, made findings of fact and recommendations as to a decree. The Chancellor on final hearing held the equities of the cause to be with the defendants and the original plaintiff appealed.

The findings of fact as made by the Special Master to the Chancellor were: (1) there was no evidence in the record to show or establish undue influence practiced by Bessie Sikes on her mother, Frances Evelyn Sikes, in and about the giving of the note and mortgage, as alleged in the appellees' answer; (2) the defendants-appellees failed to adduce proof to show or establish that part of their answer which charged that Frances Evelyn Sikes was either ill, mentally incompetent, or under the influence of opiates at the time of the execution and delivery of the note and mortgage sought to be foreclosed. The report, in part, is viz: "The record is devoid of any proof of undue influence except the innuendos of the defendants, Cora Della Brown and William Wallace Brown, her son. The conclusion is inescapable therefore that Frances Evelyn Sikes knew what she was doing when she executed the note and mortgage sought to be foreclosed herein, and that by the execution of this note and mortgage, she was attempting to pay a debt which she felt she owed to her daughter, Ella Elizabeth (Bessie) Sikes for the services which she had rendered her over a period of years."

As to the applicable law, the Special Master held that the principle enunciated in Mills v. Joiner, 20 Fla. 479, was controlling, i.e., the plaintiff could not recover on the note and mortgage because she failed to adduce proof of a special contract or an expressed or implied promise or understanding whereby her mother, Frances Evelyn Sikes, agreed to pay her for her 29 years of service in and about the rooming house. Counsel for plaintiff-appellant excepted to the Special Master's report and contended that the rule in Mills v. Joiner, *754 supra, was inapplicable but the Chancellor overruled and denied the exception. It is contended here that the Chancellor below erred in denying exceptions of the plaintiff-appellant and in entering a final decree against her.

When the cause was before us on petition for interlocutory certiorari it was contended by counsel for defendants-appellees that the rule in Mills v. Joiner, supra, controlled the controversy. We denied certiorari. The burden of proving the several elements constituting the consideration as alleged in the amended bill of complaint rested on the plaintiff-appellant. The law does not require plaintiff to establish a special contract or agreement to pay between the mother and daughter as ruled by the Special Master and the learned Chancellor. See Sections 674.27 and 674.28, F.S.A.; Cunningham v. Weatherford; Parrish v. Robbirds; Daniels v. Mercer; Wise v. Wise; Bennett v. Senn, supra.

Mrs. Sikes, about two months before her death in her letter to attorney Price, requested the drafting of a note and mortgage to compensate her daughter Bessie for services rendered to her over the years: "She (Bessie) has taken care of all business she has carried on for years. I couldn't have remained in business without her help and the place would have been lost. She has been on call night and day every since she finished the blind school. therefor she is entitled to a mortgage to cover all drudgery she has gone through with all her life * * *" She signed the mortgage with the recital viz.: "This mortgage is executed for the purpose of reimbursing the mortgagee in part for services rendered by her in looking after the mortgagor, assisting her in the operation of a rooming house, acting as her general housekeeper and nurse * * *"

The Sikes family were members of the First Presbyterian Church of the City of Miami and the pastor, W.K.C. Thompson, visited in the home for 15 or 16 years prior to Mrs. Sikes' death in 1944. He testified as to the services rendered by Bessie — he "never saw any other daughter rendering any assistance". Dr. Thomas, attending physician to Mrs. Sikes, heard her say: "She hated to work her (Bessie) to death." "She (Bessie) had helped her ever since she was a kid". Anne Kew visited in the Sikes home since 1920 and testified that Bessie did the house work * * * in the rooming house for a period of 20 years. W. Cecil Watson, Clerk of the Criminal Court of Record, testified: "I would say she (Bessie) worked there all her life". Athene Foster testified about the services rendered at the rooming house by Bessie. Goldweber, an insurance agent, testified as to the services rendered by Bessie. Many other witnesses testified as to the menial services rendered at the rooming house since 1915 until her mother's death in 1944. Bessie testified, in part: "I worked like a slave for 29 years before she (Mrs. Sikes) died."

The witnesses testified before a Special Master and a report of the proceedings was filed with the Chancellor, with findings of fact and conclusions of law, coupled with recommendations as to a decree. Arguments of counsel were made, when the Chancellor studied the record and reached conclusions. The Chancellor did not observe the witnesses nor hear them testify.

The decree appealed from is reversed with directions to enter a final decree for the plaintiff-appellant according to the prayer of the amended bill of complaint.

ADAMS, C.J., and SEBRING and HOBSON, JJ., concur.

Dissenting Opinion

It is not without some hesitation that I dissent in this case for I am conscious of the provision of the code of ethics for judicial officers to the effect that unless departure from a cardinal principle of law is evident personal opinions should yield for the sake of stability and uniformity. However, I am constrained to the belief that the principles set out in the majority opinion, which I deem to be error, are so fundamental in nature as to seriously trench upon the very foundation of our Negotiable Instrument Law.

The special master, to whom the case was referred by consent of all parties for findings of fact and law, made a comprehensive report which was approved and adopted by the Chancellor on final hearing and a decree entered in accordance therewith. The facts are ably set out by Mr. Justice Chapman in his majority opinion and it is only with his conclusions of law that I cannot agree.

It is necessary to bear in mind that we have before us for review a final decree in which the Chancellor affirmed and adopted the report of the special master as to his findings of fact and law. The appellant in its brief cites many authorities which show the weight which should be given a master's report on review and for emphasis we digest these authorities here:

"Where parties consent to reference to master for determination and such reference is entered, as a rule of court, findings of master cannot be set aside at bare discretion of court and are entitled to same weight as the verdict of a jury."

* * * * * * "It was entitled to the same weight as the verdict of a jury. Croom v. Ocala Plumbing Electric Co., 62 Fla. 460, 57 So. 243." McAdow v. Smith, 127 Fla. 29, 172 So. 448, 449. See also Empire Lumber Co. v. Morris, 102 Fla. 226, 135 So. 508; Kooman Florida Chancery Pleading and Practice, pg. 304.

I accept these authorities and suggest the case of Harmon v. Harmon, Fla., 40 So.2d 209, as additional authority in support of appellant's contention that a master's report is not to be arbitrarily disregarded. A fortiori such contention is well taken when, as here, his report has been adopted and approved by the Chancellor. We have held many times that the chancellor's findings of fact will not be disturbed if the record contains substantial evidence in support thereof.

The master made two main findings of fact:

"Your master is definitely of the opinion that the charge of undue influence asserted by the defendants to have been practiced upon the mortgagor and grantor, Frances Evelyn Sikes, by the mortgagee and grantee, Ella Elizabeth (Bessie) Sikes, has not been proven." (Master's Report, Tr. p. 681-682)

"2. There is no evidence whatsoever in the record of any agreement between the mother, Frances Evelyn Sikes, and the daughter, Ella Elizabeth (Bessie) Sikes, whereby the former agreed to pay the latter for the services which the daughter had rendered over a period of many years." (Master's Report, Tr. p. 683-684)

Upon these established facts (established by the Master's Report which is supported by substantial evidence in the record) we must base our opinion. To reach the majority's conclusion we must either reverse the findings of the master and the chancellor's approval and adoption thereof or disregard the principles of law which I deem to be controlling. In essence all we now have are a mortgage and note under seal given by a mother to her daughter in appreciation of the fact that the daughter lived with her and cared for her (the mother) over an extended period of years. We are confronted with the Master's finding that no prior agreement or understanding existed between mother and daughter in regard to payment for these services. *756

The majority opinion proceeds on the theory "when the cause was considered here on petition for certiorari to review the order of the court below on motion of the defendants-appellees to dismiss the amended bill to foreclose, our denial of the petition placed in repose, in the then state of the pleadings, the legal sufficiency of the consideration of the notes and mortgage and the enforceability thereof by the amended bill of complaint." We think this is a true and proper application and interpretation of the controlling principles based, as the able Justice says, on Section 674.27, Florida Statutes, 1941, F.S.A., (Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration) and Section 674.28, Florida Statutes 1941, F.S.A., (What constitutes value). By denial of certiorari we said in effect that there was equity in the bill and if on final hearing the real plaintiff should support her allegations by competent evidence, she should recover. Here again we run point-blank into what I consider to be the controlling question of law: Are services rendered by a daughter to her motherwithout any prior agreement for compensation sufficientconsideration to support a mortgage and note under seal in aforeclosure action against the mother's estate? The majority opinion, by reversing the lower court, answers this query in the affirmative. The answer denies consideration but not under oath. However, the issue of consideration was raised and regardless of the presumption of a valuable consideration (because the denial was not in an answer under oath) the master and the chancellor found and determined that the evidence in support of defendant-appellee's denial of consideration was sufficiently strong to overcome the mere presumption which "attached to the note and mortgage."

The majority opinion cites four Florida cases as controlling on the question of adequacy of the consideration for the note and mortgage. Three of these cases upheld the validity of deeds given for love and affection in return for services rendered. A mortgage is an executory contract as distinguished from a deed which is an executed contract and consequently the same principles of law would not be applicable. The case of Cunningham v. Weatherford, 159 Fla. 864, 32 So.2d 913, 915, needs only a superficial examination to distinguish it. In that case we had for our consideration an appeal from an order dismissing plaintiffs' suit on a promissory note given to them (husband and wife) by the decedent during his lifetime pursuant to anagreement that the wife would look after maker's home, prepare his meals and nurse and care for him for balance of his life. The opinion there states "The amended declaration alleges that the real consideration was looking after the decedent's home, preparing his meals, nursing him in sickness and caring for him. It also alleges that this was done by Daisy Belle for more than two years after the agreement was made and before the note was executed." (Italics supplied.) The ruling below was reversed and the cause reinstated for testimony to be taken in support of the allegation quoted above. Can this case be controlling here when the master found as a fact that no agreement, either express or implied, existed prior to the execution of the mortgage? In that case neither payee was a son or daughter or member of the maker's family and the presumption of gratuitous services was not called into play; yet this Court held the declaration good because there was an allegation of a pre-existing agreement or contract for compensation.

The presumption raised by 674.27, Florida Statutes 1941, F.S.A., is clearly a rebuttable presumption (and in this case such presumption was rebutted and overcome), especially when this section is read in conjunction with Section 674.31 (Failure of consideration as a matter of defense). At common law it was sometimes held that a note under seal needed no proof of consideration as the presumption of consideration raised by the seal itself was conclusive or, under other interpretations, that the seal itself supplied the consideration. 10 C.J.S., Bills and Notes, § 143, p. 599. If such ever were the law of this state it was changed by the adoption of the Uniform Negotiable Instrument Law which makes the presence of a seal raise a presumption that will shift the burden of proof *757 of lack of consideration to the defendant unless he denies such consideration by an answer under oath. See Sec. 52.08, Fla. Statutes 1941, F.S.A. The authorities cited by the majority amply support the rule that love and affection supported by services rendered constitute sufficient consideration to support a deed. I am convinced that this rule should not and does not apply to a mortgage or note. We must now turn to Section 674.28, Florida Statutes 1941, F.S.A., to determine what is meant by value. This section is identical with section 25 of the Uniform Negotiable Instrument Law. For annotations we are referred to 5 Uniform Laws Anno., Sec. 25. There, in note 81, we find the following:

"Past services rendered without expectation of compensation are not a sufficient consideration for a note. Mason v. Gardner, 186 Mass. 515,71 N.E. 952. See also Harper v. Davis, 1911,115 Md. 349, 80 A. 1012, 35 L.R.A., N.S., 1026, Ann.Cas. 1913A 861; Matter of Simmons, 1905, 48 Misc. 484, 96 N.Y.S. 1103; Strevell v. Jones, 1905, 106 App. Div. 334, 94 N.Y.S. 627; Matter of Bradbury, 1905, 105 App. Div. 250, 93 N.Y.S. 418; Matter of Pinkerton, 1906,49 Misc. 363, 99 N.Y.S. 492; Gooch v. Gooch, 1916, 178 Iowa 902, 160 N.W. 333, L.R.A. 1917C 582."

Although no Florida cases appear in this annotation, we find our position strengthened by language in the case of Valentine v. Hayes, 102 Fla. 157, 135 So. 538, 540, where this Court said:

"An act like the Uniform Negotiable Instruments Law, which has been adopted in Florida (Comp. Gen. Laws 1927, § 6760, et seq. [F.S.A. § 674.01 et seq.]) as well as in a majority of the states of the Union, should receive a uniform interpretation and construction in all of the states where it prevails if the beneficial purpose of having a uniform law on the subject is to be subserved. Therefore it is pertinent to resort to the holdings in other jurisdictions where the act is in force in order that we may arrive at an interpretation and construction of the act which should be followed in Florida."

Also the annotation in 140 A.L.R. 491 following the case of Meyer v. Meyer, 379 Ill. 97, 39 N.E.2d 311, gives added support to our conclusion. There it was said:

"There is little conflict in respect to the rule that when it is clear that services of one member of a family to another were intended to be gratuitous at the time of their rendition they can be no consideration for a subsequent note or other executory promise by the recipient of the services to pay therefor." (See list of annotations following p. 492)

The cases which uphold the note as a valid obligation enforceable against the decedent's estate are collected in Section IV of this annotation entitled "Note or Other Instrument as Importing Consideration" (p. 500) but in each of these cases the evidence failed to support the allegation in the defendant-executor's answer that there was no agreement for compensation, either expressed or implied, prior to the execution of the note. Here on basis of the master's finding alone we by cursory examination distinguish those cases from the one now under consideration.

For a case in point, let us examine Peters v. Altizer, 127 W. Va. 92, 31 S.E.2d 552, where it was held:

"Services, usually and commonly rendered by a person standing in close blood relationship to person to whom services are rendered, do not constitute consideration for a note subsequently executed by recipient of services unless it is shown thatservices were of such nature and rendered under suchcircumstances as would evince an intention of payment at timeservices were rendered." (Italics supplied)

The conclusion which I reach appears to be supported by the overwhelming weight of authority in this country. My first premise that "no consideration" is a defense even to a note under seal is accepted as the unanimous view by Professor Williston in his authoritative work on contracts. "At the present time thereis no doubt that failure of consideration would everywhere beheld a defense." Williston on Contracts, Vol. 1, Sec. 109, p. 375. My second premise, *758 that love and affection, coupled with services rendered without any prior agreement for compensation, although sufficient to support a deed, are not sufficient consideration for a note, seems to be the almost unanimous holding of all jurisdictions. After diligent and thorough search we are unable to find a single case which is in accord with the majority view. Again we refer to the case of Meyer v. Meyer, supra, where it is said [379 Ill. 97, 39 N.E.2d 314]:

"A gift is always revocable until executed, and a promissory note intended purely as a gift to the payee is but a promise to make a gift in the future. The gift is not executed until the note is paid."

This remains a true statement though the note be given in appreciation for services previously rendered as in the instant case and the note is not enforceable against the estate of the maker.

Finally I am constrained to assert that the master's findings as adopted and approved by the Chancellor, should not be captiously set aside and disregarded where, as here, they are sustained by substantial evidence and no showing is made that they were clearly erroneous. He made the express finding that there was no evidence "whatsoever in the record of any agreement" for compensation for services rendered by the daughter to the mother. As a matter of law, he held that such services were presumptively gratuitous and used as his authority our pronouncement of the law on the subject as set forth in Mills et ux. v. Joiner, 20 Fla. 479, which reads:

"It is presumption of law, that the father is not bound to pay a child, though of full age, for services while living with him at home, and as one of the family, but this presumption may be overcome by proof of a special contract, or an express or implied promise or understanding; and such implied promise or understanding may be inferred from the facts and circumstances shown in the evidence."

After reciting the foregoing excerpt the master stated, "There is absolutely no proof in the record of any such agreement between Frances Evelyn Sikes and her daughter Ella Elizabeth (Bessie) Sikes." (Italics supplied). Obviously the master held that there was no special contract, nor was there an impliedpromise or understanding, that the daughter would be compensated for her services to the mother, prior to the execution of the note, and the mortgage recited that the consideration was a reimbursement to the mortgagee for services rendered by her.

I would affirm the decree entered by the learned Chancellor. The effect of such holding would not be to deprive the appellant of anything she would receive under the will but it would protect the rights of the remaindermen created by the will. The appellant would retain her life estate in the property but the mortgage would, and must of necessity, fail for want of consideration.

Addendum

On Rehearing March 3, 1950. Pursuant to an order granting a rehearing and reargument in this cause, the Court has heard oral arguments of counsel for the respective parties for the second time and, being now fully advised in the premises, it is our conclusion that our former opinion and judgment entered herein should be and the same is adhered to. *755

ADAMS C.J., and TERRELL, CHAPMAN and ROBERTS, JJ., concur.

HOBSON, J., dissents.

THOMAS and SEBRING, JJ., not participating.

Addendum

On Rehearing July 7, 1950. In our original opinion in this case we reversed the decree entered by the Chancellor upon the recommendation of the Master who made specific findings of facts. Upon a reconsideration ex moro motu of the petition for rehearing we have concluded that the material facts as found by the master and approved by the learned Chancellor are supported by competent, substantial evidence. We have also decided that the correct principles of law were applied to the facts as found by the fact finding arbiter. Consequently the petition for rehearing should be granted and the final decree from which this appeal was prosecuted should be affirmed.

The special master, to whom the case was referred by consent of all parties for findings of fact and law, made a comprehensive report the vital aspects of which were approved and adopted by the Chancellor.

It is necessary to bear in mind that we have before us for review a final decree in which the Chancellor affirmed and adopted the report of the special master as to his pertinent findings of facts and law. The appellant in its brief cites many authorities which show the weight which should be given a master's report on review *759 and for emphasis we digest these authorities here:

* * * * * * "It was entitled to the same weight as the verdict of a jury. Croom v. Ocala Plumbing Electric Co., 62 Fla. 460, 57 So. 243." McAdow v. Smith, 127 Fla. 29, 172 So. 448, 450. See also Empire Lumber Co. v. Morris, 102 Fla. 226, 135 So. 508; Kooman Florida Chancery Pleading and Practice, pg. 304.

We accept these authorities and suggest the case of Harmon v. Harmon, Fla., 40 So.2d 209, as additional authority in support of appellant's contention that a master's report is not to be arbitrarily disregarded. A fortiori such contention is well taken when, as here, his report has been adopted and approved by the Chancellor. We have held many times that a chancellor's findings of facts will not be disturbed if the record contains competent substantial evidence to support them.

The master made two main findings of facts:

"2. There is no evidence whatsoever in the record of any agreement between the mother, Frances Evelyn Sikes, and the daughter Ella Elizabeth (Bessie) Sikes, whereby the former agreed to pay the latter for the services which the daughter had rendered over a period of many years." (Master's Report, Tr. pp. 683-684)

Upon these established facts (established by the Master's Report which is supported by substantial evidence in the record) we must base our opinion. In order to adhere to our initial conclusion we must either reverse the findings of the master and the chancellor's approval and adoption thereof or disregard the principles of law which we deem to be controlling. In essence all we now have are a mortgage and note under seal given by a mother to her daughter in appreciation of the fact that the daughter lived with her and cared for her (the mother) over an extended period of years. We are confronted with the master's findings that no prior agreement or understanding existed between mother and daughter in regard to payment for these services.

Our original opinion proceeded on the theory "when the cause was considered here on petition for certiorari to review the order of the court below on motion of the defendants-appellees to dismiss the amended bill to foreclose, our denial of the petition placed in repose, in the then state of the pleadings, the legal sufficiency of the consideration of the note and mortgage and the enforceability thereof by the amended bill of complaint." We think this is a true and proper application and interpretation of the controlling principles based, as we said, on Sections 674.27, 674.28, Florida Statutes, 1941, "Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration, * * *" and "What constitutes value." By denial of certiorari we said in effect that there was equity in the bill and if on final hearing the real plaintiff should support her allegations by competent evidence, she should recover. Here again we run point blank into what we consider to be the controlling question of law: Are services rendered by a daughter to hermother without any prior agreement for compensation sufficientconsideration to support a mortgage and note under seal in aforeclosure action against the mother's estate? Initially, by reversing the lower court, we answered this query in the affirmative. The answer denies consideration but not under oath. However, the issue of consideration was raised and regardless of the presumption of a valuable consideration (because the denial was not in an answer under oath) the Master and the Chancellor found and determined that the evidence in *760 support of defendants-appellees' denial of consideration was sufficiently strong to overcome the mere presumption which attached to the note and mortgage.

In our first opinion we cited four Florida cases as controlling on the question of adequacy of the consideration for the note and mortgage. Three of these cases upheld the validity of deeds given for love and affection in return for services rendered. A mortgage is an executory contract as distinguished from a deed which is an executed contract and consequently the same principles of law would not be applicable. Hendrie v. Hendrie, 5 Cir., 94 F.2d 534. The case of Cunningham v. Weatherford,159 Fla. 864, 32 So.2d 913, 915, needs only a superficial examination to distinguish it. In that case we had for our consideration an appeal from an order dismissing plaintiffs' suit on a promissory note given to them (husband and wife) by the decedent during his lifetime pursuant to an agreement that the wife would look after maker's home, prepare his meals and nurse and care for him for balance of his life. The opinion states "The amended declaration alleges that the real consideration was looking after the decedent's home, preparing his meals, nursing him in sickness and caring for him. It also alleges that this was done by Daisy Belle for more than two years after the agreement was made and before the note was executed." (Italics supplied). The ruling below was reversed and the cause reinstated for testimony to be taken in support of the allegation quoted above. This case cannot be controlling here when the master found as a fact that no agreement, either express or implied, existed prior to the execution of the mortgage. In that case neither payee was a son or daughter or close relative of the maker and the presumption of gratuitous services was not called into play; yet, we held the declaration good because there was an allegation of apre-existing agreement or contract for compensation.

The presumption raised by 674.27, Florida Statutes 1941, F.S.A., is clearly a rebuttable presumption (and in this case such presumption was rebutted and overcome), especially when this section is read in conjunction with Section 674.31, "Failure of consideration". At common law it was sometimes held that a note under seal needed no proof of consideration as the presumption of consideration raised by the seal itself was conclusive or, under other interpretations, that the seal itself supplied the consideration. 10 C.J.S., Bills and Notes, § 143, p. 599. If such ever were the law of this state it was changed by the adoption of the Uniform Negotiable Instrument Law which makes the presence of a seal raise a presumption that will shift the burden of proof of lack of consideration to the defendant unless he denies such consideration by an answer under oath. See Sec. 52.08, Fla.Statutes 1941, F.S.A. The appellees carried and met such burden. The authorities cited by appellant amply support the rule that love and affection supported by services rendered constitute sufficient consideration to support a deed. We are convinced that this rule should not, and does not, apply to a mortgage or note, for Section 674.28, Florida Statutes 1941, F.S.A., is determinative of what is meant by value. This section is identical with Section 25 of the Uniform Negotiable Instrument Law. For annotations we are referred to 5 Uniform Laws Anno., Sec. 25. There, in note 81, we find the following: "Past services rendered without expectation of compensation are not a sufficient consideration for a note. Mason v. Gardner, 186 Mass. 515,71 N.E. 952. See also Harper v. Davis, 1911, 115 Md. 349,80 A. 1012, 35 L.R.A., N.S., 1026, Ann.Cas. 1913A, 861; Matter of Simmons' Estate, 1905, 48 Misc. 484, 96 N.Y.S. 1103; Strevell v. Jones, 1905, 106 App. Div. 334, 94 N.Y.S. 627; Matter of Bradbury, 1905, 105 App. Div. 250, 93 N.Y.S. 418; Matter of Pinkerton's Estate, 1906, 49 Misc. 363, 99 N.Y.S. 492; Gooch v. Gooch, 1916,178 Iowa 902, 160 N.W. 333, L.R.A. 1917C, 582."

Although no Florida cases appear in this annotation, we find our position supported by language in the case of Valentine v. Hayes, 102 Fla. 157, 135 So. 538, 540, where this Court said: "An Act like the *761 Uniform Negotiable Instruments Law, which has been adopted in Florida (Comp. Gen. Laws 1927, Sec. 6760, et seq. [F.S.A. § 674.01 et seq.]) as well as in a majority of the states of the Union, should receive a uniform interpretation and construction in all of the states where it prevails if the beneficial purpose of having a uniform law on the subject is to be subserved. Therefore, it is pertinent to resort to the holdings in other jurisdictions where the act is in force in order that we may arrive at an interpretation and construction of the act which should be followed in Florida."

Also the annotation in 140 A.L.R. 491 following the case of Meyer v. Meyer, 379 Ill. 97, 39 N.E.2d 311, gives added strength to our conclusion. There it was said: "There is little conflict in respect to the rule that when it is clear that services of one member of a family to another were intended to be gratuitous at the time of their rendition they can be no consideration for a subsequent note or other executory promise by the recipient of the services to pay therefor." (See list of annotations following p. 492)

A case in point is Peters v. Altizer, 127 W. Va. 92,31 S.E.2d 552, wherein it was held: "Services, usually and commonly rendered by a person standing in close blood relationship to person to whom services are rendered, do not constitute consideration for a note subsequently executed by recipient of services unless it is shown that services were of such natureand rendered under such circumstances as would evince anintention of payment at time services were rendered." (Italics supplied.)

The conclusion which we reach appears to be supported by the overwhelming weight of authority in this country. Our first premise that "no consideration" is a defense even to a note under seal is accepted as the unanimous view by Professor Williston in his authoritative work on contracts. "At the present time thereis no doubt that failure of consideration would everywhere beheld a defense." (Italics supplied.) Williston on Contracts, Vol. 1, Sec. 109, p. 375. Our second premise, that natural love and affection, coupled with services rendered without any prior agreement for compensation, although sufficient to support a deed, is not sufficient consideration for a note, seems to be the almost unanimous holding of all jurisdictions. After diligent and thorough search we are unable to find a single case which is in accord with appellant's view. Again we refer to the case of Meyer v. Meyer, supra, where it is said: "A gift is always revocable until executed, and a promissory note intended purely as a gift to the payee is but a promise to make a gift in the future. The gift is not executed until the note is paid." [379 Ill. 97, 39 N.E.2d 314]

This remains a true statement though the note be given in appreciation for services previously rendered as in the instant case and the note is not enforceable against the estate of the maker.

We are impelled to observe that the master's findings, as adopted and approved by the Chancellor, should not be captiously set aside and disregarded where, as here, they are sustained by substantial evidence and no showing is made that they were clearly erroneous. The master made the express finding that there was no evidence "whatsoever in the record of any agreement" for compensation for services rendered by the daughter to the mother. As a matter of law, he held that such services were presumptively gratuitous and used as his authority our pronouncement of the law on the subject as set forth in Mills v. Joiner, 20 Fla. 479, which reads: "It is presumption of law, that the father is not bound *762 to pay a child, though of full age, for services while living with him at home, and as one of the family, but this presumption may be overcome by proof of a special contract, or an express or implied promise or understanding; and such implied promise or understanding may be inferred from the facts and circumstances shown in the evidence." (Italics supplied.)

After reciting the foregoing excerpt the master stated, "There is absolutely no proof in the record of any such agreement between Frances Evelyn Sikes and her daughter Ella Elizabeth (Bessie) Sikes." (Italics supplied). Obviously the master held that there was no special contract, nor was there an impliedpromise or understanding that the daughter would be compensated for her services to the mother.

The mortgage recited that the consideration was a reimbursement to the mortgagee for services rendered by her. The note which is secured by the mortgage is payable — on demand. If appellant had become embittered toward the decedent and had made demand for payment during the life of her mother and upon refusal of payment had instituted a foreclosure suit, no court of conscience could have been persuaded to rule in her favor. However, if services rendered to a parent without pre-existing contract or agreement for compensation constitute a valid consideration for a note, then foreclosure should be granted in such a case as well as in the instant suit.

Not only does the evidence show that there was no prior existing agreement expressed or implied for compensation to Bessie for services rendered to her mother but the clear implication which the testimony does permit is that the mother, during what eventually turned out to be her last illness, developed a desire to promise without a legally sufficient consideration, that she, or possibly her estate, would compensate Bessie at some future date. The services, as is disclosed by the notation appearing on the face of the mortgage, had been"rendered" prior to the execution of the executory contract. Laudable though the mother's desire may have been, the law will not sustain such a promise to make a gift in futuro. Nor should equity, were it not required to follow the law, uphold such a promise. Ella Elizabeth (Bessie) Sikes is by no means destitute. She offered the will for probate, took under its provisions, and assumed the position of testamentary trustee. Before her death her mother deeded to Bessie two Flagler Street lots. The deed to those lots was assailed by appellees in the instant suit but was properly upheld because it was an executed contract and had as its consideration natural love and affection. Bessie has a life estate in the subject property which she accepted and will retain but if foreclosure were granted she might obtain fee simple title to the property and the rights of the remaindermen would be completely destroyed. Unquestionably, Bessie rendered valuable services to her mother. During those years of service she received all of the necessities of life from her mother. She has never occupied a prejudicial position. Besides the Flagler Street lots which she owns in fee simple she enjoys a preferential status under the will.

Had the mother intended to cut off all of her heirs save the appellant she might have destroyed her will and drawn another in which she might have named the appellant as sole beneficiary or devisee. Could it be that such direct method was not pursued because of Article X, Section 4 of the Constitution of Florida, F.S.A.? Said section provides: "Nothing in this Article shall be construed to prevent the holder of a homestead from alienating his or her homestead so exempted by deed or mortgage duly executed by himself or herself, and by husband and wife, if such relation exists; nor if the holder be without children to prevent him or her from disposing of his or her homestead by will in a manner prescribed by law." (Italics supplied.)

Even though the property which is the subject of this foreclosure constituted a homestead it might have been deeded to the appellant and said deed upheld as an executed contract upon nothing more than love and affection as a consideration. Moreover, the mother might have executed an enforceable mortgage if it had been founded upon a valuable consideration. However, since the consideration for the note *763 and mortgage in this case was specifically set forth as services "rendered" by the daughter and there is no proof in the record of a pre-existing agreement for compensation, the device apparently attempted to be used in lieu of a will cannot be sanctioned for, under such circumstances, the rule of law in this State is as stated in Mills v. Joiner, supra, wherein it was held, as previously recited, that the presumption of law is that a parent is not bound to pay a child, though of full age, for services while living with said parent at home and as one of the family in the absence of proof of a prior special contract or an express or implied antecedent promise to compensate the child. The execution of the note amounted only to a gratuitous promise to make a gift in futuro. If the mortgage should be foreclosed and appellant should become the successful bidder at the sale (which is the case more often than not and certainly may be presumed in this instance for appellant has bound herself to the present leasee to bid up to $50,000) an ingenious method of circumventing Article X, Section 4 of our Constitution would have the stamp of approval of this Court. We cannot subscribe to such result.

In addition to the contention that there was no valuable consideration for the note and mortgage, appellees further present the argument that the real party at interest, namely Ella Elizabeth (Bessie) Sikes, is estopped from maintaining the instant foreclosure suit because of her action subsequent to her mother's death in probating her mother's will, becoming Executrix thereunder, accepting the trusteeship of the testamentary trust established thereby and the benefits of said trust as life beneficiary thereof. We hold that this contention is likewise well founded. It is true that after having first begun the foreclosure action in her own name she assigned the mortgage and note to the Florida National Bank Trust Company at Miami as trustee which institution was permitted to become party plaintiff and to continue the suit in its representative capacity but this fact does not relieve Ella Elizabeth (Bessie) Sikes from the effect of estoppel. Initially she had two courses open to her. She could have accepted the benefits and the trusteeship under the will after filing it for probate as she did, or she might have repudiated the will or at least renounced the trust and thereafter possibly have sought foreclosure of the mortgage. She could not do both. She made her election and will not now, in equity, be permitted to assume two inconsistent positions or by her own action in bringing the instant suit voluntarily renounce her trusteeship. Nor will she, after having assumed the position of trustee, be permitted to destroy the trust property which as trustee she is duty bound to protect in the interest of all the cestui que trustent including the remaindermen. In the case of Strong v. Willis, 3 Fla. 124, 52 Am.Dec. 364, it was held: "A trustee cannot renounce, after having accepted the trust, but must execute the provisions of the trust deed" — and that "he cannot be both trustee and assailant of the trust deed."

We further stated in that case: "One of the rules alluded to above is, that, in attempting an injury to the trust property, the trustee acts without warrant, and in breach of his duty. What more serious injury — what more intolerable breach of trust, than to assert a right in the trust property, for his own individual purposes? — to ask that property which, by his own act, has been confined to his care, to guard and protect for the wife and children of the grantor, shall be sold and appropriated to his own use?"

In the case of Crawford v. Crawford, 129 Fla. 746, 176 So. 838, 840, we said: "The allegations of the bill of complaint are sufficient to show that E.L. Crawford acquired the legal title to a one eleventh (1/11) interest in the lands by purchase, but while he continued to act as trustee for others for the purpose of holding the title to the lands for their benefit, he could not assume as an individual and in his own right a position antagonistic to that of his cestui que trustant [sic]. That a trustee cannot so act is too elementary to require citation of authority."

The Supreme Court of Pennsylvania in the case of Ross v. Barclay, 18 Pa. 179, 55 Am. Dec. 616, stated: "A trustee who accepts *764 cannot renounce. It is unnecessary to quote an authority for that. He can be discharged only by the decree of a court of Equity, whose power in this state is vested in the common pleas; by force of a provision in the deed, or by consent of all the parties interested; and though I know of no case in point, I do not hesitate to pronounce that his acceptance, like that of an executor, must be entire." (Italics supplied.)

The principle which we apply in this case is well established in the law of wills and the underlying reason for the rule exists as well with reference to testamentary trustees as it does in the case of beneficiaries or executors under a will. "One who elects to accept a benefit extended to him by a will is bound to give effect to all the provisions of the instrument and perform the burdens imposed on him therein, including the renunciation of any inconsistent rights or claims." 57 Am.Jur. 1037. See also annotations in 82 A.L.R. 1510, 93 A.L.R. 1384 and 49 L.R.A., N.S., 1073.

In the case of Burns v. First National Bank of Joliet, 1922,304 Ill. 292, 136 N.E. 695, 696, it was said: "Whether the contract alleged by the complainant was so proved is the subject of argument, but whether it was or not is of no importance. If the contract was made as alleged, and executed on the part of the complainant by performance, she could not ask its enforcement, because she elected to take under the will, and thereby ratified all its provisions * * * a beneficiary cannot accept that which is given by the will, and set up any right or claim, however legal or well founded it may have been, which would defeat or prevent a full operation of the will."

We hold that the services rendered by the appellant to her mother without a pre-existing contract or agreement for compensation to her for said services did not constitute a valuable consideration for the note and mortgage and that the appellant is estopped from maintaining the present action by virtue of her acts in probating the will, becoming executrix thereunder, accepting the trusteeship of the testamentary trust established by the will as well as the benefits of said trust as life beneficiary thereof.

Although we entertain a sympathetic attitude toward appellant because of her unfortunate infirmity, we do not believe that established law should be changed or disregarded in order to accommodate or satisfy the impellent influence of human emotions.

We affirm the decree entered by the learned Chancellor upon the recommendation of the Master who made specific findings of fact which appear to be supported by competent, substantial evidence.

Affirmed.

THOMAS, SEBRING and ROBERTS, JJ., concur.

ADAMS, C.J., dissents.

TERRELL and CHAPMAN, JJ., dissent and adhere to former opinion.