x999-1" type="majority"> 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 *497 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 *498 to sustain the implied finding of the jury that the deed was executed by Boye and delivered to the grantee, Andrews, and was in fact the accomplishment of his wish previously expressed in his will. The evidence was wholly insufficient to warrant a finding that Boye was influenced unduly to make the deed by anything said or done by Andrews, or that there was any force, menace or fraud connected with the transaction, or that Boye was not in the full possession of his mental faculties and fully comprehended what he was doing. Boye was suffering physically from his ailment, but there was no evidence of mental impairment. There was evidence that at times his sufferings had to be relieved by hypodermic injections of opiates, but there was no evidence that at other times he was not entirely competent to transact business, and there was evidence that he directed his affairs in considerable detail during the last month of his sickness.

The delivery of the deed to Andrews having been completed and its object effectuated, the subsequent custody by Happier did not change the effect of the delivery nor operate as a recall of the deed nor was it so intended. The purpose of placing it in the hands of Happier to be recorded after the grantor’s death was not inconsistent with the delivery shown, nor was it inconsistent with the intention of the grantor, which latter was clearly proven to have been to presently part with the title to the property and convey it to the grantee. The deed was, after its delivery, placed in Happier’s custody for the purpose only of recordation and not for delivery to Andrews, and Happier was therefore no more than the agent or bailee of both parties for that purpose only. What Boye’s motive was for withholding the knowledge of the conveyance from Happier is immaterial, for nothing remained to be done to complete the transfer of title to Andrews.

There are numerous assignments of error claimed to have occurred at the trial and in giving or refusing instructions to the jury which will be briefly disposed of. It was immaterial what debts deceased owed if before his death he had conveyed the property to Andrews and, for like reason, it was immaterial that deceased was living on and in possession of the premises at his death; this latter fact would not prevent his conveying the property. Evidence of what Boye did and said after the delivery of the deed was inadmissible if in *499 disparagement of Andrews’ title; so also was evidence of his physical condition unless it had some relation to his mental condition at the time the deed was executed, which was not offered to be shown; his physical condition alone furnished no sufficient evidence of mental incapacity. A witness was asked whether or not Andrews was with Boye during his sickness “in a confidential relation.’’ The objection was rightly sustained, as calling for the conclusion of the witness. It was immaterial whether the property remaining after the conveyance to Andrews would be sufficient to pay the debts and legacies mentioned in the will. The will took effect only at the testator’s death, and he had a right to dispose of his property by deed before death.

The court instructed the jury that under the issues the plaintiffs must show that at the death of Boye he was the owner of the property in question and died intestate. Plaintiffs claimed that there was no will and alleged that deceased died intestate. Obviously, it was upon them to show such to be the fact.

It was the uncontradicted evidence that no claims had been presented to the executor; that notice to creditors had been duly published and the time for presenting claims had elapsed. The court properly instructed the jury that to entitle the executor to recover possession of the land in question the jury must find from the evidence that at the time of his death the deceased had the right of ownership and possession of this land and that it was subject to testamentary disposition and had not in fact been conveyed to defendant Andrews. It was immaterial, under the issues in the case, whether there remained sufficient property to pay the debts, expenses of administration and legacies if deceased had previously to his death conveyed the property in question to Andrews. The court gave an instruction stating the law, should the jury find the facts as to the delivery of the deed and its subsequent custody by Andrews, as we have above briefly given them, and instructing the jury that if they should find that the deed was in fact delivered “absolutely and without any restriction other than that it should be held by Charles Kappler in safe-keeping until the death of said Charles Frederick Boye and then be recorded in the office of the county recorder, then such delivery would have the effect in law to pass the title immediately upon its delivery *500 by the said Charles Frederick Boye to Charles A. Andrews,” and that the subsequent possession of the property by Boye “would not have the effect in law to revest or restore the ownership of the property in the grantor, Boye, which had vested in Andrews, if you find that it had so vested.” The court also instructed the jury that a deed is presumed to have been delivered at its date, and that delivery presumed or shown, the burden is then upon the party disputing that fact to show otherwise. We see no error in these instructions. The court also rightly instructed the jury that if they should find that the deed was in fact executed and delivered the burden of showing want of consideration was upon plaintiffs and intervener.

The court properly refused to instruct the jury that because it was admitted that on November 3, 1904, deceased was the owner of the property it is presumed that unless proved to the contrary such ownership continued until his death. The previous instructions covered the proposition. The presumption of continuous ownership was met and overcome by the evidence.

The evidence was wholly insufficient to cast the burden upon defendant Andrews to show the fairness of the transaction and that it was free from fraud, artifice or other undue means. It was not error to refuse to instruct the jury that such burden was upon defendant.

We do not deem it necessary to notice in detail the other instructions asked by defendant and refused by the court. Some of them relate to matters sufficiently covered by instructions given; others are incorrect statements of the law and others are an invasion of the functions of the jury as the exclusive judges of the facts. The instructions as given fully and correctly stated the law to the jury.

We discover no prejudicial error in the record. The judgment and order are affirmed.

Hart, J., and Burnett, J., concurred.

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