J.N. Hollingsworth died in February, 1926, indebted to the Arcadia Citrus Growers Association *Page 109 in the sum of $4,549.17, Juanita T. Hollingsworth was duly appointed Administratrix of the estate of J.N. Hollingsforth and in March, 1928, the Arcadia Citrus Association reduced its claim to judgment against her as such. The Florida Trust and Banking Company also held a claim against J.N. Hollingsworth at the time of his death and subsequently reduced its claim to judgment against the Administratrix.

In April, 1927, the Arcadia Citrus Growers Association filed a bill against Juanita T. Hollingsworth individually and as Administratrix of the estate of J.N. Hollingsworth, and B.F. Wells, R.O. Turner, and Elmer Garner as Trustees, seeking to subject the proceeds of certain promissory notes held by said trustees for the estate of J.N. Hollingsworth to the payment of its judgment. The Florida Trust and Banking Company was permitted to intervene and become a party complainant to the bill.

A demurrer to the bill was overruled, answer was filed and on final hearing the Chancellor found the equities to be with complainant. A final decree was entered in which the trustees were directed to pay the costs of the litigation and to appropriate the balance of the proceeds of the promissory notes held by them to the payment of the complainant's and intervenor's judgments.

It was the contention of Mrs. Hollingsworth that the notes were given to her by her husband, J.N. Hollingsworth, in October, 1923. She is supported in this position by the testimony of other witnesses, although there is substantial testimony to the contrary and the record shows beyond question that in 1923 when the notes were alleged to have been given to her, J.N. Hollingsworth was hopelessly involved and was indebted far beyond his ability to pay. In the face of the hopeless conflicts in the testimony the *Page 110 Chancellor held that the notes were never given to Mrs. Hollingsworth by her husband, who, as an honest man, could not have so disposed of the notes under the circumstances.

Whether the proceeds of the notes in controversy were a part of the estate of J.N. Hollingsworth at the time he died, or whether they belonged to his wife, Juanita T. Hollingsworth, at the time of his death was the question decided by the Chancellor. This Court in a Per Curiam opinion filed June 7, 1934, held that this was a case of equitable cognizance and sustained the Chancellor in his decision that the notes were the property of the estate of J.N. Hollingsworth, and therefore subject to the payment of the complainants' and intervenors' judgments.

In appellant's first petition for rehearing, which was granted, she alleged that the Court failed to note that there was no allegation or averment in the appellee's pleadings charging the insolvency of the said J.N. Hollingsworth, nor any allegation of fraudulent transfer, and no allegation of a transfer of any kind, but simply an allegation that no transfer of any nature had been made by the said J.N. Hollingsworth to his said wife; that no relief was sought as for a fraudulent transfer; that the suit was not a creditors bill; that the lower court's judgment was based upon evidence insufficient to show fraudulent transfer and that such decree was predicated upon a bill of complaint that made no averment of fraudulent transfer. It was further the petitioner's contention that in view of complainants' bill evidence of Hollingsworth's insolvency should not have been allowed nor objection to such evidence overruled; that the evidence did not support any allegation of the bill as framed and that there was no testimony under the allegations of the bill to support the decree rendered, nor any conflict in *Page 111 the evidence as to the endorsement and transfer of the notes in the decree mentioned, by J.N. Hollingsworth in his lifetime to Juanita T. Hollingsworth. It was further argued that conceding the contrary, that creditors were not hindered or delayed, and that the transfer not being assailed until long after the transferor's death, the assignment should prevail as against creditors.

Upon the above grounds and influenced by the above considerations, the court granted a rehearing. On that rehearing this Court found themselves equally divided in opinion as to whether the decree of the Circuit Court should be affirmed or reversed.

Mr. Chief Justice WHITFIELD, Mr. Justice TERRELL and Mr. Justice DAVIS were of the opinion that the judgment of affirmance of this Court previously entered should be adhered to. Supporting that view, Mr. Justice DAVIS filed an opinion in which he said: "I see no reason for now recanting from what we deliberately decided on the first appeal," and in another place: "The purpose of the suit was to have it ascertained and established that the assets here in controversy were not at any time the private assets of Mrs. Hollingsworth, the administratrix, as claimed by her. The case was presented and tried in the court below as a case of that description and nothing else. The Chancellor so characterized it in his final decree and we affirmed his decision on the original hearing because the resultant decree was simply a decree on the facts as to which we could not say that the Chancellor was clearly wrong." He closed his opinion by saying that: "I therefore dissent from the holding that the bill of complaint was not sufficient to sustain the decree rendered in this cause."

Mr. Justice ELLIS, Mr. Justice BROWN and Mr. Justice BUFORD thought the decree should be reversed on rehearing, *Page 112 Mr. Justice ELLIS comprehensively reviewing the facts of the case and coming to the conclusion that the notes were given to Mrs. Hollingsworth by her husband and therefore under the allegations of the bill the decree of the Chancellor should be reversed. Mr. Justice ELLIS further found that J.N. Hollingsworth was addicted to the intemperate indulgence in intoxicating beverages, and in recognition of his duties to his wife, contemplated providing for her future by the gift of the notes, realizing that he was dissipating his assets in riotous living and wishing to provide for her in the event that he died insolvent. He further stated his view to be that when the Hollingsworth Brothers' mortgage was foreclosed for the use and benefit of the creditors of J.N. Hollingsworth, that Mrs. Juanita Hollingsworth was entitled to claim the fund arising from said foreclosure to the extent of the notes so endorsed to and held by her and proved, and to have the same allowed to her. In this connection, Mr. Justice ELLIS stated: "The bill seeks no relief from a fraudulent transfer of the property by an insolvent debtor nor from the effect of a voluntary transfer of property with intent to hinder or delay creditors in the collection of their just demands. There are wanting in the bill some of the necessary elements of a general creditor's bill. The decree of the Chancellor rests upon the proposition that the transfer of the notes by Hollingsworth to his wife was a voluntary transfer made by Hollingsworth at a time when he was insolvent, that it was therefore a fraud upon his creditors whose demands were made in the faith and upon the credit of Hollingsworth's ownership of the notes so fraudulently transferred and therefore the transaction was a fraud upon his creditors and the proceeds from the collection of such notes are subject to the payment of the complainant's demand." Mr. Justice BUFORD concurred in that statement. *Page 113

The case is now before this Court on a petition for its second rehearing. This second petition alleges that under the pleadings in said cause as framed and the issues presented thereby, the solvency or insolvency of J.N. Hollingsworth was never an issue in the case and that there was no evidence to support the decree that Juanita Hollingsworth did not own the notes in question, although the averments of complainant's bill and the issue presented by the pleadings cast upon the complainant the burden of establishing by the evidence that the defendant never at any time owned the said notes in question; further that there is not a scintilla of evidence to sustain a finding that the notes were not in fact assigned by her husband to Mrs. Hollingsworth, whether assigned in fraud of creditors or not.

An appeal in equity from a final decree is substantially a rehearing of the cause and opens the whole case for consideration, even as to questions passed, sub silentio, at the hearing before the Chancellor. Smith v. Croom, 7 Fla. 180; Parker v. Saffold, 48 Fla. 290, 37 Sou. Rep. 567. And where a decree has been rendered in a chancery cause, but a material point of proposition in controversy is left uncertain in the pleadings, or in the evidence so that it affirmatively appears that a more complete development of the rights of the parties under the law can and should be made in such pleadings or in the evidence in order that full justice may be done in arriving at a correct decision of the real points in controversy, the final decree appealed from may be vacated without prejudice, and the cause thereupon remanded, with directions to allow any and all appropriate amendments to the pleadings and to permit the taking of such further testimony as justice and equity may require in view of the existing uncertainties. Kurz v. Pappas, 107 Fla. 861, 146 Sou. Rep. 100, 147 Sou. Rep. 271; Wilkins v. *Page 114 Bank of Commerce, 95 Fla. 85, 116 Sou. Rep. 13, Fleischer v. Virginia-Carolina Chemical Co., 82 Fla. 50, 89 Sou. Rep. 401; Graham v. Florida Land Mtge. Co., 33 Fla. 56, 14 Sou. Rep. 796; Chapman v. St. Stephens Protestant Episcopal Church, 105 Fla. 683, 136 Sou. Rep. 238, 138 Sou. Rep. 630, 139 Sou. Rep. 188, 145 Sou. Rep. 757; Foster v. Thornton, 119 Fla. 49, 160 Sou. Rep. 490, and similar cases.

In view of the irreconcilable differences of opinion which may appear to exist amongst the members of this Court as to the exact character, nature and scope of the controversy presented by the pleadings and adjudicated by the Chancellor in the decree appealed from, it seems to a majority of the Court that it is now appropriate to grant a further rehearing in this case, reverse and vacate the final decree appealed from without prejudice and without costs to either party, and thereupon remand the cause to the Circuit Court for reconsideration and rehearing after the making of such appropriate amendments to the pleadings and the presentation of such further evidence in the case, as the parties may desire, within a reasonable time therefor to be fixed by the Circuit Court, and that other and further proceedings be had in this cause thereafter as shall be conformable to justice and equity in the premises.

It is ordered accordingly.

WHITFIELD, C.J., and ELLIS, BROWN, BUFORD, and DAVIS, J.J., concur. *Page 115