The morning call., 1894-12-05
Judge Seawell Decides That the
Deeds Were Exchanged
AND WERE LEGALLY ABSOLUTE.
David Hunter Meant His Wife to be
Spared the Trouble of
VIII Contest.

similar deed executed by her to him.
Mrs. Joan n. q. Hunter, the widow,
brought the suit in question against Har-
mon j. and c. L. Tilden, executors of her
late husbands estate. The other defend
ants were legatees and devisees under a
will, over which contest is pending,
whereby Mrs. Hunter was beoueathed only
one-half the property. the balance going
to various heirs. A large number of at
torneys were engaged in this case. IN
which the fate of the pending will contest
was thought in great measure to depend.
Prior to the execution of this disputed
deed of conveyance Mr.. Hunter had exc
cuted n will by which. with the exec ption
of few legacies, comparatively small, he
had given his entire estate to his wife, the
plaintiff in this case. Mrs. Hunter had
also executed a will in favor OF her bus-
band. After the execution of the wills
Mr.. Hunter having observed the frequency
OF will contests came 10 the conclusion
th at he would, in his lifetime, convey his
property by deed TO his wife, so that no
probate proceedings upon his estate would
be necessary after his death.
Hunter at first contemplated a single
deed from himself to his wife, but after
ward for reasons not disclosed concluded
that at the same time when he executed
his deed to her she should execute a deed
of all her property to him. AT this time
Hunter was possessed of large and valu-
able estate. Mrs. Hunter also owned some
property in her own right, but the value
thereof, compared with that of her hus-
band, was small.
By Hunters direction Charles L. TIL
den. who had for some years been his legal
adviser, prepared TWO deeds; enc from
Hunter TO his wife, the other from her 10
her husband. The deed from Hunter pur-
ported TO convey all his property, real and
personal, and particularly his property in
San Francisco. Oakland and Alameda.
Mrs. Hunters deed was similar in pur-
port. and especially conveyed her property
in San Francisco.
On the afternoon of January 9, 1889, Mr.
and Mrs. Hunter met by appointment with
Tllden at the latter's office. There the
deeds were signed, acknowledged and SOL
EMMY exchanged in the presence of wit
nesses. Frank r. Whitcomb and Robert
Harrison afiixing their signatures as such
to both deeds.
Some time after this transaction Mrs.
Hunter became mentally incompetent. but
she ultimately recovered. When Hunter
died, however. in the spring of 1888. he
left will behind him whereby his wife
only inherited one-half of the property.
Mrs. Hunter contested the will, and by
way of preliminary proceeding set up this
deed of conveyance. On the part of the
defendants, however, it was claimed that
thl 6nliVprU 0f thnSa dnadc
matter Of form which Mr.. Hunter went
through in order to give the appearance of
a legal delivery. when. in fact, his inten-
ton was that the deed should not take
effect as a conveyance during his life or
until after his death, and was therefore
testamentary in character.
Part of the plaintiffs testimony con-
sisted of letter of instructions which
Hunter wrote to his wife prior to the exc
cution and exchange of the deeds. The
letter contained these words: ITO nv
dear wife. AS l have already given you
deed of all my property. both real and
personal, and as there are certain legacies
and requests l would like to have carried
out after my death. / write this for your
better guidance in the natter
1t was further cOnterded by Mrs.
Hunter that, Notwithstanding The delivery
Of the deed to her by Mr.. Hunter, it was
understood and agreed between them that
Hunter should, during his lifetime, have
the same management and control of his
property which he had before the execu-
ton of the deed, and that he should to the
world have the same appearance of owner
ship that he had before. AS a matter of
for hot RI hair
tive properties as they had done before.
except that their respective bank accounts
were on September II, 1890, transferred to
the names of both jointly.
The case was tried few weeks ago be-.
fore Judge Seawel!. 1t was a fierce con-
test while IL lasted, and both Tilden and
Whitcomb, who testified for the defense.
came in FIR a considerable scoring at the
hands of j. c. Campbell, leading counsel
for the plaintiff. They were accused of
underhand conduct in the transaction
which brought about the execution of this
disputed will.
In rendering Judgment yesterday Judge
Seawel remarked: "The question which
l am called upon to decide is whether the
deed from Mr.. Hunter TO his wife was, on
the 9th day of January, 1889. in legal
sense delivered by him to her. The ques-
ton whether, in a given case, there has
been delivery of deed is one of inten-
ton on the part of the grantor. there being
no question as to its acceptance by the
grantee.
"For the purpose of ascertaining what
was the intention of Mr.. Hunter in hand
ing his deed TO his wife, testimony mas
been introduced as to the declarations
made by The parties themselves on that
occasion and by Mr.. Tilden. their coun sell,
in their presence" Judge Seawell then
recites the testimony Of Mrs. Hunter as to
what took place between the parties On
that occasion. claiming that she presented
her deed to Hunter first, and that Hunter
then turned to her and said: 80. here is
deed to all my property, to the real and
personal, etc." The deeds were then laid
Oh the table and afterward taken by Til
den and locked up in a safe deposit box.
On the other side T'ilden testified that
he told Hunter after this that the deeds
would not be good unless backed up by
wills, and, that acting upon his advice,
Hunter executed the testament now in