BROWN, C. J.
We copy the following findings of fact by the Court of Civil Appeals :
“From the evidence in the record, we find the following to be the facts as bearing on the issues made by the pleadings:
“(1) Mrs. Charlotte Rankin, on June 23, 1897, executed a deed to Mrs. L. A. Rankin, wife of Harry W. Rankin, to 100 acres of land out of a 300-acre tract, in Ellis county, Tex.; the consideration recited in said deed being $25 cash and love and affection. No attack is made on this deed.
“(2) On November 24, 1898, the said Mrs. Charlotte Rankin executed a deed to the said Mrs. L. A. Rankin for the remaining 200 acres of said tract of land, for the recited consideration of $50 cash and love and affection. This is the deed which is attached in this suit.
“(3) Each of said deeds conveyed title to Mrs. L. A. Rankin in her separate right. No consideration was paid for the execution of either of said deeds. Both of said deeds were in the handwriting of Harry Rankin, were executed at his house, and when the last deed was executed there was no one present besides the grantor, Harry Rankin, and his wife, except one J. T. Houx, who was a particular friend of said Harry Rankin, and who signed the same, and also a written memorandum attached thereto, as a witness. The evidence does not fully develop the circumstances under which the first deed was executed, but does show that the same was at the solicitation of said Harry Rankin.
“(4) Said deed to the 200-acre tract was executed under the following circumstances: Mrs. Charlotte Rankin, being at the house of Harry Rankin, was informed by him that the first deed incorrectly described the land intended to be conveyed, and presented her the second deed, informing her that it was a substitute for the former deed and conveyed the same land intended to be conveyed by the former deed. Believing these statements to be true, Mrs. Rankin signed the same, and also the memorandum attached to the same. This memorandum recited that Sirs. Charlotte Rankin was to retain possession of said land during her lifetime and was to pay all taxes thereon.
“(5) This deed was witnessed by said Houx only, and was not acknowledged before any officer, and was not filed for record until August 17, 1908, nearly ten years after its execution, and some nine months after the death of Mrs. Charlotte Rankin. Neither Harry Rankin nor his wife ever set up ány claim to said land during the lifetime of Mrs. Charlotte Rankin, and the execution of said deed, as a deed containing 200 acres of land, was not known to any of the other heirs of Mrs. Charlotte Rankin until some months after her death. Some time after the execution of said last deed they learned that Mrs. Charlotte Rankin had executed a deed to the wife of Harry Rankin for 100 acres of said Ellis county tract. This deed had not been filed for record when the second deed was executed, but was filed for record in Ellis county February 13, 1899.
“(6) At the time of the execution of said deeds, Mrs. Charlotte Rankin was over 70 years old.' She was, and for some time prior thereto had been, in feeble health and weak in mind, and on account of the condition of her eyes could not see without glasses, and then with great difficulty. This physical and mental condition so continued to the time of her death.
“(7) Mrs. Charlotte Rankin had four sons, all of whom, except T. J. Rankin with whom she lived, were married, and all of whom lived in the same town with her. So far as the record shows, none of the parties ever lived in Ellis county.
“(8) Mrs. Charlotte Rankin never knew, nor did she have any reason to suppose, that the second deed was other than it was represented to her to be at the time she signed the same.
“(9) The land conveyed in the second deed was worth about $40 per acre when said deed was executed, and from $70 to $75 per acre at the time of the trial.
“(10) Harry Rankin had great influence with his mother.
“(11) By said deeds conveyance was made to Mrs. L. A. Rankin in her separate right, because there were unsatisfied judgments against Harry Rankin and he was insolvent.
[529]*529■ “(12) Mrs. Charlotte Rankin executed a will on October 21, 1899, at which time she thought the said deeds executed by her had perhaps been destroyed, but did not feel sure that such was the case. In said will she bequeathed her property equally to her son T. J. Rankin and to her three daughters-in-law, in trust for their children, except that, in addition to his one-fourth, she also bequeathed to her son T. J. Rankin, with whom she had long made her home, the home in which she lived. She was at the time of the execution of said deeds a widow, and so remained to the time of her death. The fifth clause in said will was as follows: T have heretofore given a deed to Lou Adell Rankin, to one hundred acres of land in Ellis county, and in the' event said deed was not destroyed but still exists, I value the same at $2,500, and desire that the same be charged up to the interest of said Lou Adell Rankin in making division of my said estate.’ In addition to the general issue, the defendants pleaded the four-year statute of limitations. No issue was raised by the pleadings as to want of proper parties. The jury returned a verdict for the plaintiff, appellee herein, and judgment was entered canceling said deed, from which judgment the defendants appealed.”
It is admitted by attorneys for all parties and held by the honorable Court of Civil Appeals that the declarations of Mrs. Rankin were not admissible to prove the fraud charged to have been practiced upon her by H. W. Rankin, nor to prove the undue influence claimed to have been exercised over her whereby she was induced to execute the deed in question.
[1] The general rule on this point is expressed thus: “Where the' execution of a will is proved in the mode required by law, the declarations of the testator, made before or after the execution of the instrument, are not competent to prove fraud, duress, or forgery, or to disprove the execution; they are hearsay, merely. But such declarations, made at the time the instrument was executed, are admissible as part of the res gestae. The rule upon these points is the same in the case of wills that it is in the case of deeds.”
[2] It is conceded by counsel for defendant in error, in a candid and clear presentation of his client’s case, that the declarations of Mrs. Rankin, made subsequent to the making of the deed, not in the presence of H. W. Rankin nor his wife, are not competent to prove the fraud or the undue influence upon which this action rests. But it is claimed that the evidence was pertinent to prove the “state of Mrs. Rankin’s mind.” It must be the condition of her mind at the time of the transaction which is permitted to be proved, because such condition at a different date could not throw any light on the transaction. The declarations made by Mrs. Rankin that a certain fact had been misrepresented to her at a previous time might be so extravagant as to show a disordered mind when she made the declaration, but could not prove her mental condition when the deed was made, unless made so near to that date as to justify the inference that existed at that time.
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BROWN, C. J.
We copy the following findings of fact by the Court of Civil Appeals :
“From the evidence in the record, we find the following to be the facts as bearing on the issues made by the pleadings:
“(1) Mrs. Charlotte Rankin, on June 23, 1897, executed a deed to Mrs. L. A. Rankin, wife of Harry W. Rankin, to 100 acres of land out of a 300-acre tract, in Ellis county, Tex.; the consideration recited in said deed being $25 cash and love and affection. No attack is made on this deed.
“(2) On November 24, 1898, the said Mrs. Charlotte Rankin executed a deed to the said Mrs. L. A. Rankin for the remaining 200 acres of said tract of land, for the recited consideration of $50 cash and love and affection. This is the deed which is attached in this suit.
“(3) Each of said deeds conveyed title to Mrs. L. A. Rankin in her separate right. No consideration was paid for the execution of either of said deeds. Both of said deeds were in the handwriting of Harry Rankin, were executed at his house, and when the last deed was executed there was no one present besides the grantor, Harry Rankin, and his wife, except one J. T. Houx, who was a particular friend of said Harry Rankin, and who signed the same, and also a written memorandum attached thereto, as a witness. The evidence does not fully develop the circumstances under which the first deed was executed, but does show that the same was at the solicitation of said Harry Rankin.
“(4) Said deed to the 200-acre tract was executed under the following circumstances: Mrs. Charlotte Rankin, being at the house of Harry Rankin, was informed by him that the first deed incorrectly described the land intended to be conveyed, and presented her the second deed, informing her that it was a substitute for the former deed and conveyed the same land intended to be conveyed by the former deed. Believing these statements to be true, Mrs. Rankin signed the same, and also the memorandum attached to the same. This memorandum recited that Sirs. Charlotte Rankin was to retain possession of said land during her lifetime and was to pay all taxes thereon.
“(5) This deed was witnessed by said Houx only, and was not acknowledged before any officer, and was not filed for record until August 17, 1908, nearly ten years after its execution, and some nine months after the death of Mrs. Charlotte Rankin. Neither Harry Rankin nor his wife ever set up ány claim to said land during the lifetime of Mrs. Charlotte Rankin, and the execution of said deed, as a deed containing 200 acres of land, was not known to any of the other heirs of Mrs. Charlotte Rankin until some months after her death. Some time after the execution of said last deed they learned that Mrs. Charlotte Rankin had executed a deed to the wife of Harry Rankin for 100 acres of said Ellis county tract. This deed had not been filed for record when the second deed was executed, but was filed for record in Ellis county February 13, 1899.
“(6) At the time of the execution of said deeds, Mrs. Charlotte Rankin was over 70 years old.' She was, and for some time prior thereto had been, in feeble health and weak in mind, and on account of the condition of her eyes could not see without glasses, and then with great difficulty. This physical and mental condition so continued to the time of her death.
“(7) Mrs. Charlotte Rankin had four sons, all of whom, except T. J. Rankin with whom she lived, were married, and all of whom lived in the same town with her. So far as the record shows, none of the parties ever lived in Ellis county.
“(8) Mrs. Charlotte Rankin never knew, nor did she have any reason to suppose, that the second deed was other than it was represented to her to be at the time she signed the same.
“(9) The land conveyed in the second deed was worth about $40 per acre when said deed was executed, and from $70 to $75 per acre at the time of the trial.
“(10) Harry Rankin had great influence with his mother.
“(11) By said deeds conveyance was made to Mrs. L. A. Rankin in her separate right, because there were unsatisfied judgments against Harry Rankin and he was insolvent.
[529]*529■ “(12) Mrs. Charlotte Rankin executed a will on October 21, 1899, at which time she thought the said deeds executed by her had perhaps been destroyed, but did not feel sure that such was the case. In said will she bequeathed her property equally to her son T. J. Rankin and to her three daughters-in-law, in trust for their children, except that, in addition to his one-fourth, she also bequeathed to her son T. J. Rankin, with whom she had long made her home, the home in which she lived. She was at the time of the execution of said deeds a widow, and so remained to the time of her death. The fifth clause in said will was as follows: T have heretofore given a deed to Lou Adell Rankin, to one hundred acres of land in Ellis county, and in the' event said deed was not destroyed but still exists, I value the same at $2,500, and desire that the same be charged up to the interest of said Lou Adell Rankin in making division of my said estate.’ In addition to the general issue, the defendants pleaded the four-year statute of limitations. No issue was raised by the pleadings as to want of proper parties. The jury returned a verdict for the plaintiff, appellee herein, and judgment was entered canceling said deed, from which judgment the defendants appealed.”
It is admitted by attorneys for all parties and held by the honorable Court of Civil Appeals that the declarations of Mrs. Rankin were not admissible to prove the fraud charged to have been practiced upon her by H. W. Rankin, nor to prove the undue influence claimed to have been exercised over her whereby she was induced to execute the deed in question.
[1] The general rule on this point is expressed thus: “Where the' execution of a will is proved in the mode required by law, the declarations of the testator, made before or after the execution of the instrument, are not competent to prove fraud, duress, or forgery, or to disprove the execution; they are hearsay, merely. But such declarations, made at the time the instrument was executed, are admissible as part of the res gestae. The rule upon these points is the same in the case of wills that it is in the case of deeds.”
[2] It is conceded by counsel for defendant in error, in a candid and clear presentation of his client’s case, that the declarations of Mrs. Rankin, made subsequent to the making of the deed, not in the presence of H. W. Rankin nor his wife, are not competent to prove the fraud or the undue influence upon which this action rests. But it is claimed that the evidence was pertinent to prove the “state of Mrs. Rankin’s mind.” It must be the condition of her mind at the time of the transaction which is permitted to be proved, because such condition at a different date could not throw any light on the transaction. The declarations made by Mrs. Rankin that a certain fact had been misrepresented to her at a previous time might be so extravagant as to show a disordered mind when she made the declaration, but could not prove her mental condition when the deed was made, unless made so near to that date as to justify the inference that existed at that time. It has generally been held that the truth or falsity of the declaration is of no importance except as it affects the question of mental weakness.
In the case of Throckmorton v. Holt, 180 U. S. 573, 21 Sup. Ct. 482, 45 L. Ed. 663, the Supreme Court of the United States, speaking through Judge Peckham, said: “After much reflection upon the subject, we are inclined to the opinion that not only is the weight of authority with the cases which exclude the evidence both before and after the execution, but the principles upon which our law of evidence is founded necessitate the exclusion. The declarations are purely hearsay, being merely unsworn declarations, and when no part of the res gestae are not within any of the recognized exceptions admitting evidence of that kind. Although in some of the cases the rqmark is made that declarations are admissible which tend to show the state of the affections of the deceased as a mental condition, yet they are generally stated in cases where the mental capacity of the deceased is the subject of the inquiry, and in those cases his declarations on that subject are just as likely to aid in answering the question as to mental capacity as those upon any other subject. But if the matter in issue be not the mental capacity of the deceased, then such unsworn declarations, as indicative of the state of his affections, are no more admissible than would be his unsworn declarations as to any other fact. When they are not a part of the res gestae, declarations of this nature are excluded because they are unsworn, being hearsay only, and, where they are claimed to be admissible on the ground that they are said to indicate the condition of mind of the deceased with regard to his affections, they are still unsworn declarations, and they cannot be admitted if other unsworn declarations are excluded. In other words, there is no ground for an exception in favor of the admissibility of declarations of a deceased person as to the state of his affections, when the mental or testamentary capacity of the deceased is not in issue. When such an issue is made, it is one which relates to a state of mind which was involuntary and over which the deceased had not the control of the sane Individual, and his declarations are admitted, not as any evidence of their truth, but only because he made them, and that is an original fact from which, among others, light is sought to be reflected upon the main issue of testamentary capacity. The truth or falsity of such declarations is not important upon such an issue (unless that for the purpose of show[530]*530ing delusion it may be necessary to give tbe evidence of tbeir falsity); but tbe mere fact tbat tbey were uttered may be most material evidence upon tbat issue. Tbe declarations of the sane man are under bis control, and tbey may or may not reflect bis true feelings, while tbe utterances of tbe man whose mind is impaired from disease or old age are not tbe result of reflection and judgment, but spontaneous outpourings arising from mental weakness or derangement. Tbe difference between tbe two, both as to the manner and subject of tbe declarations, might be obvious. It is quite apparent therefore tbat declarations of tbe deceased are properly received upon the question of bis state of mind, whether mentally strong and capable or weak and incapable, and tbat from all tbe testimony, including bis declarations, bis mental capacity cab probably be determined with considerable accuracy. Whether the utterances are true or false cannot be determined from tbeir mere statement, and tbey are without value as proof of tbeir truth, whether made by the sane or insane, because tbey are in either case unsworn declarations.”
We first note tbat there is nothing in tbe declarations of Mrs. Rankin concerning the fraud which tends to prove tbat her mind was weak at tbe time she made tbe deed. According to the evidence of tbe witness her mind was quite clear at tbe date of her detailed statements. If those statements were correct, she remembered well tbe details of tbe transaction, which fact tends to negative tbe claim of mental weakness. If tbey were not true, but simply the creatures of a disordered mind, then tbey show no reason to disturb her conveyance; but there is no proof of fraud or improper influence. It follows tbat tbe judge of tbe district court erred in submitting tbe issues of fraud and undue influence to tbe jury, there being no sufficient or competent evidence to prove either issue, and tbe judgment must be reversed.
It was tbe duty of tbe district judge, before whom tbe trial was bad, to decide whether or not tbe declarations of Mrs. Rankin tended to prove that at tbe time she executed tbe deed in question her mind was in such condition as to disqualify her to execute tbat instrument or to render her susceptible to undue influence over her will power by her son. We are of tbe opinion tbat tbe declarations were not competent to prove either fact and should have been excluded from tbe jury and should not be admitted upon another trial.
We have hesitated to remand this case upon tbe record as it is before us, but we realize tbat fraud is oftentimes very difficult to prove and is peculiarly a fact which must be established by circumstantial evidence. It is very difficult to express in a record tbe full force of evidence of tbat character. Tbe trial judge has a better opportunity to determine tbe admissibility of evidence, tbat is, whether it tends to prove a given fact, than this court has from tbe record. On tbe other band, juries are liable to give undue weight to circumstances which characterize this character of litigation, which fact renders more imperative tbe exercise by tbe judge of bis judgment upon the relevancy of the evidence upon issues of fraud or unfairness in such transactions.
In submitting this case to another jury tbe declarations of Mrs. Rankin as to tbe fraud of H. W. Rankin, or as to influence exercised or deception practiced upon her by him1, should not be permitted to go to tbe jury, because as a matter of law such declarations are not competent to prove either fact, and tbe declarations relied upon do not tend to prove mental condition at the time the deed was executed.
It is unnecessary to pass upon tbe objection made to tbe testimony of tbe witness Haney, as we bold tbe declaration related by him to be inadmissible.
[3] Tbe evidence to tbe effect tbat Lipscomb, tbe attorney for plaintiff in error, bad offered to give Gus Rankin his part if be would have nothing to do with tbe case, was improperly admitted; it did not tend to prove or disprove any issue in this ease.
[4] As tbe record comes to this court we are not prepared to say tbat there was error in admitting tbe evidence to tbe effect tbat H. W. Rankin did not object to the placing of tbe land on tbe inventory of bis mother’s estate. Of itself that action could prove nothing, but it might be pertinent in a chain of circumstantial evidence.
[6] We believe that we have stated tbe principles which should govern in another trial sufficiently without discussing each assignment. If H. W. Rankin procured bis mother to make the deed to tbe land in tbe name of his wife in order tbat be might have the control of it as bis own, all evidence which would be admissible if the deed had been to H. W. Rankin will be admissible in this case on another trial.
It is ordered tbat tbe judgments of the district court and Court of Civil Appeals be reversed, and the cause remanded to the district court for trial in accordance with this opinion.