Undoubtedly the law of this case was settled in the opinion and decision of this court handed down on December 22, 1939, and reported in 141 Fla. 188, 192 So. 791. In that opinion and decision we dealt with an appeal from a final decree which disposed of two cases, one of which involved the change of beneficiary of an insurance policy, and the other was this accounting case. In the opinion in that case Mr. Justice BUFORD, speaking for the Court said:

"The accounting case involves a question as to whether or not (1) J.S. Wilkins was acting in a fiduciary capacity in handling the affairs of W.C. Wilkins, now deceased, from January 1, 1931, until the death of W.C. Wilkins on *Page 597 August 1, 1935; and (2) if the first question is answered in the affirmative, whether or not by reason of such fiduciary relationship J.S. Wilkins acquired control, possession and management of certain property theretofore belonging to W.C. Wilkins; and (3) whether or not certain properties shown to have been acquired by J.S. Wilkins from W.C. Wilkins during that period were lawfully acquired and became the property of J.S. Wilkins, or were procured by undue influence and, therefore, were not transferred or conveyed by valid sale, gift, conveyance or delivery from W.C. Wilkins to J.S. Wilkins."

And again, later on in the same opinion, the following appears:

"The record in the instant case is a great deal more voluminous than was the record in the will case above referred to, but, when all is considered, the result is that we find cumulative evidence pro and con concerning the same factual conditions but must again arrive at the conclusion that during all those years between 1930 and the death of W.C. Wilkins, W.C. Wilkins was under the dominant influence of J. Wilkins."

It thus appears that it was clearly held in that case, reading the opinion as a whole, that J.S. Wilkins was acting in a fiduciary capacity for W.C. Wilkins from January 1, 1931, to August 1, 1935, the date of the death of W.C. Wilkins, and that during that period he acquired deeds of real estate from W.C. Wilkins, and that the burden was cast upon him to show that the real estate so acquired was bona fide and legally acquired, and that he had failed to meet that burden, and that therefore he should be required to convey to the appellants all of such real estate thus acquired which remained vested in the appellees, J.S. Wilkins and Nora Wilkins, his wife.

As I read this record the deed of July 22, 1929, was executed *Page 598 by W.C. Wilkins, in Leesburg, Florida, before the period of fiduciary relations began, and that the same was delivered to J.S. Wilkins during the year 1929.

I, therefore, am of the opinion that the chancellor below, in his last decree, from which this appeal was taken, misconstrued the opinion of this Court of December 22, 1939, when he canceled the deed referred to, and in so doing I think the Chancellor erred.

However, I am inclined to agree with the chancellor in his holding that the testimony before him was not sufficient to make any definite finding as to the rental values which should be charged against J.S. Wilkins. As to this feature of the case, I concur with the majority opinion in holding that J.S. Wilkins should make an accounting to the appellants to the amount of the rents actually collected by him while in possession during the period mentioned in the opinion, and also that he should also make an accounting for rents which he could by reasonable diligence have secured during that period, that is, the reasonable rental value of the property. Of course, he would be entitled to credit for by cost of repairs, taxes and insurance, if any, paid out by him during that period. I concur also with the holding of the majority opinion in holding that, in the absence of a showing by J.S. Wilkins as to what amount of rents he actually collected, the rental value may be established by the testimony of qualified witnesses as to what was the reasonable rental value of each piece of property for each year throughout the period of about four years and a half involved in this case. In this respect, I think that further testimony should be taken by the chancellor, or that the parties should be given the opportunity to adduce further testimony on this question so as to enable the chancellor to arrive at some definite conclusion on that question. *Page 599

Except as in the respects above pointed out I concur in the majority opinion.