Boye

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…