
    Francis Gay et al. v. Wallace Gay et al.
    Declarations of a grantor, made in the absence of the grantee, are not competent evidence, in an action between the latter and the heirs of the grantor, to prove that undue influences or fraud were used in procuring the deed of conveyance.
    Motion for leave to file a petition in error to the District Court of Cuyahoga county.
    The original action was brought by plaintiffs in error against the defendants in error, to set aside a deed of conveyance of real estate from the common ancestor of the parties to the defendants. The grounds upon which.it was Bought to have the deed set aside were: 1. Mental incapacity of the grantor; 2. fraud and undue influence on the part of the grantees.
    
      On the trial in the court below, to which the cause had Been taken by appeal from the Court of Common Pleas, the plaintiffs having offered testimony tending to prove undue influence ” on the part of the defendants, offered to prove certain delarations made by their father in his lifetime, both before and after the execution of the deed, but made in the absence of the defendants, tending to show importunities, and probably other influences, exerted by the defendants to procure the conveyance in question.
    These declarations being objected to, the court refused to hear them as testimony on the question of “ undue influence,” but did allow the same to be given in evidence, for the purpose of showing the state of the grantor’s mind. And the only question made arises on the rejection of the •declarations of the grantor as testimony tending to prove such undue influence.
    
      J. K. Hord, with whom were G. L. Fish and-Buchner, for the motion,
    cited: Nelson v. Oldfield,-2 Fern. 76; 17 Ala. 55; Means v. Means, 5 Strob. 167; Gawthorne v. Haynes, 24 Mo. 236; Heel v. Reel, 1 Hawks, 248 ; Howell v. Borden, 3 Dev. 442; Hester v. Hester, 4 lb. 228; Ramble v. Tryon, 7 S. & Rawle, 90; Howe v. Hoioe, 99 Mass. 88; Red-field on Wills, 3 ed., 547, 548 g, 555, 556 r; 5 N. Y. 165; A Dutcher, 274.
    
      H. C. Ranney, contra.
   By the Court.

The declarations offered were incompetent for the purpose named. As to the use of undue influence in procuring the deed, they were mere hearsay; and in this respect it made no difference whether the declarations were made before or after the execution of the deed, provided they were not made at such time and under such .circumstances as to make them parts of the res gestae. The declarations offered were not of the res gestee.

Motion overruled.  