Roby, J.
Appellee filed ber claim against tbe estate of Forman S. Byram, deceased. Tbe ease was tried in tbe Marion Circuit Court, special finding of facts made, conclusions of law stated tbereon, and judgment rendered for tbe amount of tbe note wbicb formed tbe basis of tbe claim.
Tbe finding of facts is, in effect, as follows: From 1878 to bis death decedent was tbe agent of tbe appellee, wbo [8]*8was Ms cousin, and loaned and reloaned, invested and reinvested, her money in the purchase of stocks, bonds, notes and other' securities, and upon such terms and conditions and at such times as to him seemed best, retaining such stocks, bonds, notes and other securities in his exclusive possession and control during the whole time of such agency. He acted without charge or compensation for his services, and on or about January 1 rendered to appellee an annual statement concerning her property and business in his hands, which statement he transmitted to her in New York where she resided, except that no statement was made for January 1, 1902, in the early part of which year he became sick, and on June 16 departed this life. Decedent kept the papers and securities aforesaid in his private safe in his private office, in a paper box on which were the letters and word “S. A. Byram.” This box was, at all times prior to his death, in his exclusive possession and control. About six or eight weeks before his death, and while he was too sick to go to his office, he directed that the box be brought to his house, which was done. He did not leave the house after that, and after his death the box was found in a locked bureau drawer. It contained the instrument sued on, a promissory note for $738.67, dated at Indianapolis, April 1, 1898, payable on demand to the order of S. A. Byram, at the Capital National Bank of Indianapolis, with six per cent interest from date and attorneys’ fees, value received, and without relief from valuation laws, and signed “N. S. Byram.” On the face of said instrument the words “Certificate thirty as collateral” were written, and on its back was the-following: “Paid on this note July 26, 1898, $40, February 1, 1899, paid $157” — all in the handwriting of decedent. The instrument was folded in certificate number thirty of a corporation named, which certificate was for ten shares of $100 each in said corporation. The certificate [9]*9was dated April 23, 1898, and certified that E. S. Byram was the owner thereof. Eo assignment or indorsement by said Byram was on said certificate. The instrument sued upon was made by tbe use of an ordinary printed form, tbe blanks in wbicb were filled in decedent’s own bandwriting. Tbe indorsements on said note and tbe signature thereto were also in bis bandwriting. Said box contained notes, stocks, bonds, and tbe instrument in suit, copies of decedent’s annual itemized statements rendered to appellee from 1878 to 1901. Tbe itemized statements aforesaid are included in tbe finding of facts. They refer to certain securities and money wbicb decedent held in bis possession belonging to appellee. Eone of them make any reference to tbe instrument sued upon, nor to any note purporting to be executed by tbe decedent payable to appellee, nor do they show an indebtedness from him to her.
Tbe fourth and fifth findings were in terms as follows: “(4) And tbe court further finds that at tbe time of tbe death of decedent said note was held by decedent as trustee and agent of claimant, and for her benefit, and not for tbe decedent individually. (5) That said Eorman S. Byram as such agent bad possession and control of said paper sued upon until tbe day of bis death, and that, except as herein stated, be bad never surrendered tbe same to claimant or to any other person for her use and benefit, and tbe claimant has never bad any control or power over said paper, nor bad the same in her possession or control; that afterwards all tbe papers, notes, stocks and bonds in said box were turned over to said claimant upon tbe order of this court, at tbe request and petition of tbe executor, except tbe paper sued upon, and tbe copies of tbe annual statements made by decedent to claimant.'”
Tbe conclusions of law were that tbe note sued upon was executed and delivered by tbe decedent to appellee; that [10]*10she was the owner and holder thereof, and entitled to recover thereon the sum of $814.33; and judgment was rendered in accordance therewith.
The special findings, excluding the fourth and fifth items, contain a fair resumé of the evidence.
Appellant excepted to the conclusions of law, and filed a motion for a venire de novo, based upon the absence of a finding as to the execution of the note in suit. This motion was overruled, as was also its motion for a new trial. Errors are assigned upon each ruling.
1. The burden of establishing the execution of the note rested upon appellee, by reason of the statute regulating the tidal of claims against decedents’ estates. §2419 Burns 1901, Acts 1883, p. 151, §11. There was no controversy as to the note’s having been written and signed by decedent, but execution includes delivery. Nicholson v. Combs (1883), 90 Ind. 515, 46 Am. Rep. 229; Smith v. James (1892), 131 Ind. 131.
2. The actual controversy between the parties is as to whether the note sued upon was delivered. The execution of a promissory note is an ultimate fact. Smith v. James, supra; Vaughan v. Codman (1885), 103 Ind. 499, 502. If it had been found that the note was “delivered,” the other facts necessary to execution being admitted, such finding would have been effective, but it is not in terms made. The finding is therefore insufficient to sustain the conclusions and judgment, unless the evidentiary facts set out are such as that but one inference can be drawn from them, in which event the absence of the statement of the ultimate fact does not prevent the court, as a matter of law, from drawing the unavoidable inference. If the facts found leave room for a difference of opinion between reasonable men, then the ultimate fact must be determined by the court or jury trying the case. Keller v. Gaskill (1894), 9 Ind. App. 610; Cincinnati, etc., R. Co. v. Grames (1893), 136 Ind. 39.
[11]*113. It appears from the findings- that decedent was appellee’s agent from 1878 until his death, and that he had authority of the broadest character to make investments and take notes and securities for her. Persons who gave notes to such agent can not escape liability, when sued, because of the fact that appellee never had the instruments in her hands, and did not know of their existence or the existence of the makers. Delivery to the agent was delivery to the principal. Skinner v. Baker (1875), 79 Ill. 496; Fletcher v. Shepherd (1898), 174 Ill. 262, 51 N. E. 212; Miller v. Irish Catholic, etc., Assn. (1887), 36 Minn. 357, 31 N. W. 215; Sowards v. Moss (1899), 58 Neb. 119, 78 N. W. 373.
4. It is, however, contended that an agent can not act as such where his personal interest is or may be antagonistic to that of his principal, and that therefore decedent could not deliver his note to himself as the agent for appellee. The rule invoked is a wise and salutary one.
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Roby, J.
Appellee filed ber claim against tbe estate of Forman S. Byram, deceased. Tbe ease was tried in tbe Marion Circuit Court, special finding of facts made, conclusions of law stated tbereon, and judgment rendered for tbe amount of tbe note wbicb formed tbe basis of tbe claim.
Tbe finding of facts is, in effect, as follows: From 1878 to bis death decedent was tbe agent of tbe appellee, wbo [8]*8was Ms cousin, and loaned and reloaned, invested and reinvested, her money in the purchase of stocks, bonds, notes and other' securities, and upon such terms and conditions and at such times as to him seemed best, retaining such stocks, bonds, notes and other securities in his exclusive possession and control during the whole time of such agency. He acted without charge or compensation for his services, and on or about January 1 rendered to appellee an annual statement concerning her property and business in his hands, which statement he transmitted to her in New York where she resided, except that no statement was made for January 1, 1902, in the early part of which year he became sick, and on June 16 departed this life. Decedent kept the papers and securities aforesaid in his private safe in his private office, in a paper box on which were the letters and word “S. A. Byram.” This box was, at all times prior to his death, in his exclusive possession and control. About six or eight weeks before his death, and while he was too sick to go to his office, he directed that the box be brought to his house, which was done. He did not leave the house after that, and after his death the box was found in a locked bureau drawer. It contained the instrument sued on, a promissory note for $738.67, dated at Indianapolis, April 1, 1898, payable on demand to the order of S. A. Byram, at the Capital National Bank of Indianapolis, with six per cent interest from date and attorneys’ fees, value received, and without relief from valuation laws, and signed “N. S. Byram.” On the face of said instrument the words “Certificate thirty as collateral” were written, and on its back was the-following: “Paid on this note July 26, 1898, $40, February 1, 1899, paid $157” — all in the handwriting of decedent. The instrument was folded in certificate number thirty of a corporation named, which certificate was for ten shares of $100 each in said corporation. The certificate [9]*9was dated April 23, 1898, and certified that E. S. Byram was the owner thereof. Eo assignment or indorsement by said Byram was on said certificate. The instrument sued upon was made by tbe use of an ordinary printed form, tbe blanks in wbicb were filled in decedent’s own bandwriting. Tbe indorsements on said note and tbe signature thereto were also in bis bandwriting. Said box contained notes, stocks, bonds, and tbe instrument in suit, copies of decedent’s annual itemized statements rendered to appellee from 1878 to 1901. Tbe itemized statements aforesaid are included in tbe finding of facts. They refer to certain securities and money wbicb decedent held in bis possession belonging to appellee. Eone of them make any reference to tbe instrument sued upon, nor to any note purporting to be executed by tbe decedent payable to appellee, nor do they show an indebtedness from him to her.
Tbe fourth and fifth findings were in terms as follows: “(4) And tbe court further finds that at tbe time of tbe death of decedent said note was held by decedent as trustee and agent of claimant, and for her benefit, and not for tbe decedent individually. (5) That said Eorman S. Byram as such agent bad possession and control of said paper sued upon until tbe day of bis death, and that, except as herein stated, be bad never surrendered tbe same to claimant or to any other person for her use and benefit, and tbe claimant has never bad any control or power over said paper, nor bad the same in her possession or control; that afterwards all tbe papers, notes, stocks and bonds in said box were turned over to said claimant upon tbe order of this court, at tbe request and petition of tbe executor, except tbe paper sued upon, and tbe copies of tbe annual statements made by decedent to claimant.'”
Tbe conclusions of law were that tbe note sued upon was executed and delivered by tbe decedent to appellee; that [10]*10she was the owner and holder thereof, and entitled to recover thereon the sum of $814.33; and judgment was rendered in accordance therewith.
The special findings, excluding the fourth and fifth items, contain a fair resumé of the evidence.
Appellant excepted to the conclusions of law, and filed a motion for a venire de novo, based upon the absence of a finding as to the execution of the note in suit. This motion was overruled, as was also its motion for a new trial. Errors are assigned upon each ruling.
1. The burden of establishing the execution of the note rested upon appellee, by reason of the statute regulating the tidal of claims against decedents’ estates. §2419 Burns 1901, Acts 1883, p. 151, §11. There was no controversy as to the note’s having been written and signed by decedent, but execution includes delivery. Nicholson v. Combs (1883), 90 Ind. 515, 46 Am. Rep. 229; Smith v. James (1892), 131 Ind. 131.
2. The actual controversy between the parties is as to whether the note sued upon was delivered. The execution of a promissory note is an ultimate fact. Smith v. James, supra; Vaughan v. Codman (1885), 103 Ind. 499, 502. If it had been found that the note was “delivered,” the other facts necessary to execution being admitted, such finding would have been effective, but it is not in terms made. The finding is therefore insufficient to sustain the conclusions and judgment, unless the evidentiary facts set out are such as that but one inference can be drawn from them, in which event the absence of the statement of the ultimate fact does not prevent the court, as a matter of law, from drawing the unavoidable inference. If the facts found leave room for a difference of opinion between reasonable men, then the ultimate fact must be determined by the court or jury trying the case. Keller v. Gaskill (1894), 9 Ind. App. 610; Cincinnati, etc., R. Co. v. Grames (1893), 136 Ind. 39.
[11]*113. It appears from the findings- that decedent was appellee’s agent from 1878 until his death, and that he had authority of the broadest character to make investments and take notes and securities for her. Persons who gave notes to such agent can not escape liability, when sued, because of the fact that appellee never had the instruments in her hands, and did not know of their existence or the existence of the makers. Delivery to the agent was delivery to the principal. Skinner v. Baker (1875), 79 Ill. 496; Fletcher v. Shepherd (1898), 174 Ill. 262, 51 N. E. 212; Miller v. Irish Catholic, etc., Assn. (1887), 36 Minn. 357, 31 N. W. 215; Sowards v. Moss (1899), 58 Neb. 119, 78 N. W. 373.
4. It is, however, contended that an agent can not act as such where his personal interest is or may be antagonistic to that of his principal, and that therefore decedent could not deliver his note to himself as the agent for appellee. The rule invoked is a wise and salutary one. It is designed to guard against the abuse of fiduciary duty, and all such transactions are void “as respects the principal unless ratified by him with a full knowledge of all the circumstances.”
5. It is supplemented by the further rule that all profits and advantages procured by the agent in the transaction of agency affairs inure to the benefit of the principal, and it matters not whether such profit or advantage be the result of the performance or of the violation of the duty of the agent. Mechem, Agency, §469; Rochester v. Levering (1886), 104 Ind. 562, 568; M’Cormick v. Malin (1841), 5 Blackf. 509.
6. The doctrine asserted would be applicable were the agent attempting to compel his principal to take his note in the final settlement of their affairs, instead of the money with which he had been intrusted. It is not applicable where the principal elects to enforce the note made by the agent, as in the case at bar.
[12]*127. It remains only to inquire whether the inference of delivery necessarily arises from the facts disclosed by the finding. The note in suit is shown to have been written and signed by the decedent, and payments indorsed by him thereon. The business relation between him and appellee was one of extreme confidence upon her part. The annual statement constituted her means of information as to the investments made and the amount due. So far as those statements show, there was not due to her at any time the sum represented by the note in suit. The decedent, however, was not limited to the information contained in his own statements. lie knew the absolute and entire truth. What seems to us a discrepancy was no doubt a simple circumstance to him, but in any event it is impossible to explain his conduct with regard to the note upon any theory except that he intended it to be paid, such intention being carried down to.the time when the box was brought to him at his residence, since otherwise it is not believable that the shrewd and intelligent man of affairs would have left the note as he did among the papers belonging to and connected with appellee’s affairs and marked with her name.
“The acts which consummate the delivery of a promissory note are not essentially different from those required to complete the execution of a deed.” Purviance v. Jones (1889), 120 Ind. 162, 16 Am. St. 319; Anderson v. Anderson (1890), 126 Ind. 62.
“To constitute a delivery, there must be an intention to part with control over the deed as its owner.” Berry v. Anderson (1864), 22 Ind. 36; Dearmond v. Dearmond (1858), 10 Ind. 191; Vaughan v. Godman (1884), 94 Ind. 191.
In the case of Burkholder v. Casad (1874), 47 Ind. 418, where a father made a deed to his infant children, and held the same, never having caused it to be recorded, the jury [13]*13were instructed that “It is sufficient if you find from the evidence, taking into consideration all the circumstances proved as surrounding the transaction, that John Burk-holder either delivered it to some one for them, or intended to or did hold said deed for the benefit of his children.” In approving the transaction the Supreme Court said: “We think there must be some act or declaration on the part of • the grantor from which it may be inferred that he intended to part with the title to the property, and this whether the grantees be infants or adults. * * * It may be delivered without being actually handed over, and if once delivered its retention by the grantor does not affect the title of the grantee.” Nye v. Lowry (1882), 82 Ind. 316; Vaughan v. Godman, supra; Fulton v. Fulton (1866), 48 Barb. (N. Y.) 581.
“Ho particular form is necessary to perfect the delivery of a deed. * * * A deed may be delivered by any acts or words evincing the intention of the grantor to deliver it. Thus in Folly v. Vantuyl [1827], 4 Halst. *153, Eolly made a bond to his daughter, and, holding it up to her, said, ‘Mary, this is your bond, what shall I do with it V — adding, ‘I will take care of it for -you.’ He then indorsed it ‘Mary’s bond,’ and put it away in his trunk. This was held to be a good delivery.” Mallett v. Page (1856), 8 Ind. 364. See, also, Somers v. Pumphrey (1865), 24 Ind. 231, 240. Where the grant is to a child and is beneficial, its acceptance is j>resumed, although the deed remains in the possession of the grantor. Vaughan v. Godman (1885), 103 Ind. 499, 502.
The second finding of facts is in part as follows: “That all indorsements on said note and the written portion of said note, including the signature, were made by and in the handwriting of said decedent, and were placed in said box for the purpose, and with the intention of delivering the same to said claimant. The same was at the time of • de[14]*14cedent’s death left in said bos, among the papers of said claimant, by said decedent for the use and benefit of said claimant.”
The possession of the instrument by the maker, acting as agent for the payee, does not prevent the application of the rule relative to delivery to a third person, as is shown by ' the cases above cited. Oases in which the grantor is treated as agent for the grantee are very numerous. The following are a few of them:
One member of a partnership made a deed to himself and the other partners, retaining possession of the deed. It was contended that there was no delivery because the deed had been retained by the grantor. The Supreme Court said: “It is fairly inferable from the allegations of the complaint, that the property was purchased and held as partnership property, and, of course, the delivery of a deed to one partner would be a delivery to the partnership. If the complaint did not show partnership, there would be no force in appellant’s argument, for delivery to one of several grantees would be valid and effective as to all.” Henry v. Anderson (1881), 77 Ind. 361. See, also, Tucker v. Bradley (1860), 33 Vt. 324.
The delivery of a chattel mortgage was held good although made to the agent for the mortgagee who was also attorney for the mortgagor. Fletcher v. Martin (1890), 126 Ind. 55. See, also, Squires v. Summers (1882), 85 Ind. 252; In re Reeve's Estate (1900), 111 Iowa 260, 82 N. W. 912; Munro v. Bowles (1900), 187 Ill. 346, 58 N. E. 331, 54 L. R. A. 865; Stewart v. Weed (1858), 11 Ind. 92; Blight v. Schenck (1849), 10 Pa. St. 285, 51 Am. Dec. 478.
It is universally held that the absolute retention of control over the instrument by the maker is inconsistent with the intention to deliver. Fifer v. Rachels (1901), 27 Ind. App. 654; Osborne v. Eslinger (1900), 155 Ind. 351, 80 Am. St. 240. Oases of this class are distinguished from the [15]*15one at bar in that the maker of tbe note sued upon here was the agent of tbe payee, expressly authorized to take and hold paper for her, while in those cited the person holding the instrument was the agent of the grantor exclusively.
It was said by the Supreme Court in Hatton v. Jones (1881), 78 Ind. 466, 472: “We do not think that a person could appoint himself as trustee and then make a valid delivery of his own property to himself as such trustee; or that an intention or promise to give would make a perfected gift so as to constitute the intender or promisor a trustee for the-use of the intended or promised beneficiary.” That case is distinguished from the one at bar in that the agency relied upon here is not self created, nor does it arise out of the transaction in which the note was made.
That part of the fifth finding to the effect that appellee never had control or power over said paper was' evidently intended to refer to physical control and manual possession. So construed it is not inconsistent with the rest of the finding. Taking them together, it sufficiently appears that the note sued upon was held by decedent as the agent of appellee, and is therefore enforceable at her suit.
Judgment affirmed.
Comstock, C. J., Eobinson, P. J., Black and Myers, JJ., concur; Wiley, J., dissents.