From tbe facts in evidence it appeared that on 7 July, 1908, Nellie Eakestraw, owning two tracts of land and other property, aggregating in value four or five thousand dollars, made ber last will and testament, in wbicb she devised and bequeathed ber estate to ber daughter, Emma, with whom sbe was then living on tbe land, and twenty days thereafter, on 27 July, 1908, sbe executed a deed for this land to ber daughter, Emma. In August,' 1909, said Nellie Eakestraw died, and ber other children and heirs at law, having duly entered a caveat to tbe will and instituted a suit to set aside tbe deed, on tbe ground of mental incapacity and undue influence, tbe two proceedings were consolidated without objection and tbe issues tried and determined as heretofore stated.
On tbe trial there was evidence on tbe part of plaintiffs tending to show that, at tbe time of making tbe will and the deed, Nellie Eakestraw was 84 or 85 years of age, well-nigh physically helpless, and mentally incompetent to make either a will or deed. In support of this position, Mrs. Lou Gann, one of *438the daughters examined as a witness, gave it as her opinion that the mother was mentally incompetent at the time of execution of the will and deed, and testified further that the witness was at the home with the mother the day after the will was made, and that her mother’s mind was very weak; did not recognize the witness^ and that the mother then said to her she had made no will, and also that Emma, in the presence of the mother and another sister, said it was “all a story about the will,” and the mother made no reply, etc.
Plaintiffs proposed to prove same or substantially similar facts by Mrs. Martin, another sister, and the evidence was excluded, the court being of opinion that testimony was incompetent under section 1631, Revisal, excluding, in certain cases, testimony of interested parties as to a transaction with deceased persons. The proposed evidence was in support of the opinion just given by these witnesses as to the mental incapacity of the mother, and is not regarded as a “transaction” by our decisions construing the section referred to. In McLeary v. Norment, 84 N. C., 235, the Court held: “Where a witness testifies to the want of mental capacity in a grantor to make a deed, and that his opinion was formed from conversations and communications between the witness and grantor, it was held competent to prove the facts upon which such opinion was founded. Section 343 of The Code does not apply to the facts of this case.” Section 343 of The Code of that time corresponds to section 1631 of present Revisal. It was urged for the defendant that the evidence had relation only to the issue on the validity of the will, and, even if the ruling was erroneous, it should not be allowed to affect the verdict as to the deed, but we cannot so consider the evidence. The deed was executed twenty days after the' execution of the will, and, under the circumstances presented, if the fact is accepted by the jury that, within twenty days of the execution of the deed, the alleged testatrix could not remember for twenty-four hours that she had made a will, this of itself would be a relevant circumstance as to the intelligent execution of the deed. Apart from this, if, as defendant contends, Nellie Rake-straw, the mother, had mental capacity sufficient to execute these instruments, the fact that she allowed the devisee, in her *439presence and without protest, to assert that tbe making of tbe will was “all a story,” when she bad just made such a will, this in one aspect might be considered a relevant circumstance on tbe third issue as to undue influence exercised by sucb devisee. On a careful perusal of tbe record, tbe Court is of opinion that tbe exclusion of tbe evidence referred to constitutes reversible error, and tbe cause must be tried before another jury. It is so ordered.