This case comes before the court from the court of common pleas, by exceptions. The question was, whether Browning O’Kelly, the ancestor of the parties, executed and delivered a deed, in his life time, to the respondent, om, of his sons, by which he gave to him the estate of which partition is now prayed. That a deed was made, executed and acknowledged by the ancestor, was proved. The question was, whether it was delivered so as to take effect and pass the estate. If it was delivered by the grantor to any person, in his life time, to be delivered to the grantee after his decease, it was a good de livery, upon the happening of the contingency, and related back so as to divest the title of the grantor, by relation, from the first delivery. Foster v. Mansfield, 3 Met. 412. But the fact of delivery is a question for the jury. If there is any evidence to go to the jury, it is not competent for the court to withdraw it from them ; and the court cannot pass upon the weight or sufficiency of the evidence. It is highly probable that, upon the evidence, a jury must come to the same result which the judge did; because, though the evidence tended to show that Polly Briggs was authorized to deliver the deed, upon a certain contingency, yet that she never executed that authority ; and other evidence tended to show that Amy Baker, after the decease of the grantor, handed the deed over to the grantee, yet that she had no authority to do so. Still the question of delivery depends on an act done, and the intent with which it is done. Here the deed was in fact handed by the grantor, in his life time, to Amy Baker, or to some person from whom she received it. If that was done with an intent that it should be delivered to the grantee, it might make it a good delivery. We are of opinion, that there was some evidence bearing on the question of intent, for the con *440sideration of a jury. And though the evidence tending to show any intimation of the ancestor’s intent that Amy Baker should deliver the deed without further authority from him, was very slight, and although the evidence tending to negative any such intent was very strong, yet it was for the jury, and not the court, to draw the inference. We think the evidence should have been left to the jury, with directions, that if the grantor, in his life time, handed the deed to Amy Baker, and accompanied it with any expression of his intent that, after his decease, she should deliver it to the respondent, and she did so, it was a good delivery to give effect to the deed ; but if he handed it to her to keep, and gave no authority to deliver it, it could not operate as a deed.
As to the evidence offered, that Amy Baker, when she delivered the deed to the respondent, said, “ here are the papers which grandfather gave me to deliver to you,” we think it was rightly rejected. In the first place, it is very clear that it could, not be offered to impeach the witness by contradicting her ; because she was his own witness. Then it is argued that it was competent to prove it, as words accompanying an act, and part of the res gestae. But in considering this rule, we must make the true distinctions. It is not every thing that is said at the time of doing an act, which is admissible, but only words that qualify and give character and effect to the act; such as show the motive or pbject, purpose or intent, with which it was done. When words are thus admissible, they may be proved, by any person who heard them, as ■ facts, whether the witness who is alleged to have used them recollects them, and can testify to them, or not. For instance; if the offer had been to prove that, when she handed the deed to the respondent, she had said, “ I hand you this deed to be destroyed and cancelled,” or, “ I hand you this deed as your own,” though she could not recollect it, and did not testify to it, it would have been admissible, and would show that, so far as she had power to act, the delivery in the former case would render the deed inoperative and void, and in the latter good. But the offer of proof went further, and was intended to show, as an independ*441ent fact, that she had been authorized by her grandfather to deliver the deed ; a fact to which she does not testify under oath. Now this fact of authority was independent of her act of delivery.
Had any person been present when her grandfather delivered the deed to her, and would testify that he authorized her to deliver it after his decease, I think it would be competent evidence, although she had testified that, when he delivered the deed • to her, he said nothing. It would, indeed, be inconsistent with her testimony, and therefore, in that particular, would contradict her; but, not being offered for that purpose, it would not be objectionable, if there was another legitimate purpose for which it might have been offered. And we think there was such an object, viz. to prove the fact of authority, from the grantor to her, to deliver the deed after his death; a fact within the issue, and proveable by any competent evidence Nor is it secondary evidence; nor would it be objectionable on the ground that the testimony of Amy Baker would be better evidence. But the true reason why the evidence offered was rightly objected to is, that it was hearsay. It was offering a witness to prove that he had heard Amy Baker state a fact, which she does not state on oath, and thereby to make her statement evidence of the fact stated by her not on oath. The objection is just the same, in this respect, as if she had not been called as a witness. In that case, it would have been competent for the respondent to prove by one witness that she had delivered the deed to him, and to prove by another that the grantor had authorized her so to do, and thus make out both parts of his case. But no witness would be permitted to testify, that Amy Baker had stated either of the facts to him ; because it would be hearsay, and not evidence under oath,
New trial granted.