Boye v. Andrews

CHIPMAN, P. J.

Action to quiet title to real estate. Charles Happier, as executor of the last will of plaintiffs’ testate, intervened. The issues were tried by a jury and defendant Andrews had the verdict on which judgment was entered accordingly. Intervener Happier appeals from the judgment and from the order denying his motion for a new trial. Plaintiffs do not appeal. Happier, as executor, claimed the property in dispute as belonging to the estate of Boye, deceased; denied Andrews’ ownership and alleged by an amendment filed during the trial that the deed under which Andrews claims title was executed by deceased while suffering from a cancer and under the influence of opiates, and while “his mind was in no fit condition” to transact business, and that the deed was executed through the “duress, menace, fraud and undue influence of said Andrews” and “was against and without the consent and knowledge of said deceased. ’ ’

It' appeared that sometime in August, 1904, deceased, who was seventy years of age and had never married, and was then suffering from a cancer, went to San Francisco and was operated upon at a hospital; that defendant, Andrews, and intervener Happier, were both there and both were old acquaintances and friends of deceased; on September 1, 1904, while at the hospital and just before going to the operating table, deceased made a will, which was entirely in his own handwriting, by which he devised the property in question to Andrews and also made some small bequests, among them one of $500 to intervener Happier, who was named as executor of the will; the balance, including the property in question, was devised to Andrews. Sometime early in September, 1904, deceased returned to his home ranch in Siskiyou county and to the property in question and there remained until November 23, 1904, when he died. Prior thereto, to wit, on November 3, 1904, he executed a deed of the property in dispute to defendant, Andrews, and the question most seriously urged now by appellant is as to the

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delivery of this deed at the time of its execution. There was evidence tending to show that on November 3, 1904, deceased sent for Martin Marx, attorney at law and notary public, and stated to him that he desired to convey the land in question to defendant Andrews and that he wanted Marx to prepare a deed from deceased to Andrews, explaining to Marx what ■property he wanted to convey. Marx went to his office, prepared the deed, affixed his seal to the acknowledgment, but did not affix his signature thereto. He returned to the house of deceased and in the presence of the nurse of deceased and of Andrews read the deed to deceased and.handed it to him, who signed it, whereupon Marx attested it by his signature as notary and handed it to deceased, who then handed it to Andrews. It appeared that after the deed was delivered to Andrews, Boye expressed a wish that Happier be given custody of the document, although he did not want him to know its contents and that he be requested to have it recorded after Boye’s death. Marx explained that as the deed had been delivered to Andrews, Boye’s wish could be accomplished without affecting the transfer. Thereupon Marx prepared one envelope in which was placed the deed, and the envelope was sealed and directed to the county recorder. This envelope was then placed in a larger envelope which was directed to Happier, and on it were written directions signed by Boye that, upon hearing of the death of Boye, Happier was to open the package and send the inside envelope to the recorder. The reason assigned by Boye for this was that Happier was his friend and had been attending to some of his business and already had the custody of his will and he feared he might be offended if he was not intrusted with this document. It appeared that the package was delivered to Happier and at Boye’s death he opened it and found the sealed envelope directed to the recorder and the deed was accordingly delivered to the latter and duly recorded. As already stated, both Happier and Andrews were with Boye at the hospital in San Francisco, and Happier testified that a few days before Boye returned to his home he made a will and gave it to Happier, and the latter came home with Boye and his nurse, and it was by this will that Boye devised to Andrews the property now in dispute. We do not deem it necessary to set out the testimony, for it is amply sufficient