delivered the opinion of the court:
Appellant, the grandson of the deceased, George Leavitt, filed his bill for partition, making the sisters of his father, and also their mother, defendants. The defense set'up is, the lands sought to be partitioned were conveyed by George Leavitt to the four sisters, with a provision in the deeds that the widow of Leavitt should have the rents and profits of the land for life. The conveyances thus made disposed of the lands, if the deeds were valid, in a different way from that provided by the Statute of Descent. Where an attempt is made to effect a distribution of lands or other property different from that provided by law, the evidence relied upon to establish the contract under which this is sought to be done must be weighed in the most scrupulous manner, and the contract'must be proved by competent evidence.
Appellant claims as heir, and the court permitted the widow of George Leavitt, and the grantees in the deeds, his daughters and their husbands, to testify as to matters occurring before the death of Leavitt. Where one claims as heir, and seeks to assert his title beause of that relation, defendants, who claim under a deed from the ancestor, are not competent witnesses to defeat the right of the heir under the Statute of Descent. (Way v. Harriman, 126 Ill. 132; Bevelot v. Lestrade, 153 id. 625; Wilson v. Wilson, 158 id. 567.) The interests of the grantees in the deeds *90and the interest of the widow were all greater than given under the Statute of Descent, and their evidence was not competent as seeking to sustain their title adversely to the interest of appellant, who claimed as heir. The trial court erred in admitting in evidence the testimony of the grantees in the deed, of the husbands of the grantees and of the widow of the deceased, as to matters occurring before the death of George Leavitt.
It is not contended that the deeds were delivered to the grantees during the lifetime of George Leavitt. Twice before the execution of these deeds he had made deeds conveying these lands to the same parties by different descriptions. He retained possession of those two sets of deeds, and called in a justice of the peace to make the deeds under which defendants claim title. The former deeds were destroyed. These deeds were in.the house where the deceased resided, and were by his widow recorded and delivered to the grantees after his death. There is nothing in this evidence to show that George Leavitt, the grantor, lost all control over the deeds, and it is apparent that he did not intend the grantees should become possessed of the estate before bis death. His declarations, shown by competent evidence, are convincing that such was his intention, and the rule is that the intention of the grantor with reference to the delivery of * deeds is the controlling element. Wilson v. Wilson, supra; Shults v. Shults, 159 Ill. 654; Brown v. Brown, 167 id. 631; Hawes v. Hawes, 177 id. 409.
There was no sufficient delivery of the deeds and the court erred in dismissing the bill. The decree of the circuit court of Randolph county is reversed and the cause is remanded.
Reversed and remanded.