This is a suit in equity “to have cancelled, annulled and destroyed” a deed of a. (certain tract of land in the city and county of Worcester, on the ground that the deed was procured *72by improper and undue influence exercised upon the grantor by the grantee while the grantor was known to the grantee to be in a weakened physical and mental condition. The bill further alleges that the grantor was induced to execute and deliver the deed to the grantee without any consideration or anything of value.
, On the motion of the plaintiff the court in the exercise of its discretion and without objection framed and submitted to the jury as the single issue for its determination the question: “Was the deed from Ellen V. Wright to Carrie A. Fisher, dated February 19, 1916, and recorded with Worcester District Deeds, February 21, 1916, procured to be executed through the fraud or undue influence of Carrie A. Fisher? ”
At the close of the evidence the plaintiff requested the court to give the jury three specific instructions, postulated on the assumption of fact that the deed was without consideration, that it was a gift, and that the motive of the grantee in her relation to the grantor was mercenary. These requests for instructions, numbered 1, 4 and 5, in the form presented were refused properly, because they required the court to assume as true facts put in issue by the answer and not otherwise conceded. Disregarding the objectionable form of the requests, the charge fully and accurately covered every phase and varying aspects of the evidence which the plaintiff could properly ask the jury to consider in determining the submitted issue of fact.
During the trial the plaintiff offered in evidence a letter dated September 6, 1913, written by the husband of the defendant to the chief of police of Worcester for. the purpose, as the plaintiff claims, of discrediting the plaintiff with his mother, the grantor, and argues that “the jury might have found it an untruthful and fraudulent attempt of the defendant to discredit the plaintiff with the Police Department of Worcester. ” This letter being no more than an act or statement of a third party was properly excluded; there was no direct or inferential evidence to warrant a finding by the jury that either the defendant or the mother had knowledge of the contents of the letter before the deed was executed, or to support the contention that the plaintiff was thereby discredited with the police department. Carter v. Fitz, 124 Mass. 269. Hall v. Grace, 179 Mass. 400.
The plaintiff offered in evidence a declaration of a daughter *73of the defendant, made to him after the funeral of the grantor, in the presence of the defendant, to the effect that there was no .will and that everything, meaning household goods, in the house belonged to her (the daughter) as showing ill will toward the plaintiff by the defendant, who remained silent "while this statement was heard.” The declaration was clearly res inter alios acta, and there is nothing in it to warrant an inference of undue influence upon the mind of the grantor destroying her free agency or which called for a denial of any inference of ill will toward the plaintiff.
The exceptions taken to the refusal to instruct the jury as requested and to receive the proffered testimony must be overruled.
The jury having answered the issue framed in the negative, the court entered a final decree dismissing the bill with costs, and the plaintiff appealed. As exceptions were then pending, the entry of the decree had no greater force than an order for such a decree if and when the exceptions should be overruled. The appeal must be dismissed and a decree may now be entered properly in conformity to the terms of the order. Tyndale v. Stanwood, 186 Mass. 59, 63. Boston & Maine Railroad v. Hunt, 210 Mass. 128, 132. Harvey v. Bross, 216 Mass. 57.
Exceptions overruled.
Appeal dismissed.