Cochran, J.,
delivered the opinion of this Court:
This is an appeal from a judgment obtained by tho appellees in a suit brought to recover possession of certain parcels of real estate, claimed by them as heirs at law of Rachel Colvin.
For the purpose of defeating the claim set up by the appellees, the appellant offered in evidence a will executed by Rachel Colvin on the 6th of April 1848, with the proceedings upon which it had been admitted to probate after the trial of issues, and also a will, executed by her on the *38430th. of October 1845, in both of which he was named devisee of the property in question. The appellees then offered a mass of testimony, to show that these wills were made when she was of unsound mind, and incapable of executing a valid will, and that their execution was induced by the impression and undue influence of the appellant. They also proved that another will, containing a clause revoking previous wills, was executed by her some time in the year 1847. During the course of the trial, the appellant reserved two exceptions. The 1st of these exceptions was taken to the admission of evidence of certain declarations made by Dr. Teackle, then deceased, who attested the execution of the will of 1848, and the 2nd to the granting of the appellees’ 3rd, 4th, 5th, 8th, 9th, 10th and 11th prayers, and the rejection of the appellants’ 3rd, 4th, 5th and 6th prayers, and also to the instructions given by the Court in lieu of the rejected prayers on both sides. The appellees’ 3rd, 4th, 5th, 9th and 10th, and the instructions given in lieu of the 1st, 2nd and 6th prayers, with the instructions substituted for the appellants’ 5th prayer, all of them submit specific propositions for the guidance of the jury, in passing upon the question of the testamentary capacity of the testatrix, when the wills of 1845 and 1848 were respectively executed. The instruction given in lieu of the appellees’ 7th and the appellants’ 5th prayer, relate to, and determine the operation and effect of the execution and subsequent loss or destruction of the will of 1847, upon the will of 1845, and upon the rights of the appellees as heirs at law ot the testatrix; and that given in lieu of the appellants’ 6th prayer, simply pronounced the legal effect of the probate of the will of 1848, as to real estate, and imposed upon the appellees the burden 'of showing that, in reference to real estate, that paper was not the last will of the testatrix. The 11th prayer of the appellees, relates only to the title of one of the lots claimed by them in this case. With this general statement of the character and purpose of the prayers and instructions presented for re*385view by the 2nd .otception, we proceed to consider the question as to the admissibility of the evidence, to which the 1st exception was taken.
The offer of the appellees was, io prove by St. George W. Teackle, that bis brother Dr. Teackle, one of the witnesses to the will of 1848, called at his office on the afternoon of the day when that will was executed/ and said to him that “Miss Rachel had executed a will, and that she was not fit and was crazy, or some expression to that effect;” to'which the witness replied, that he hoped he, the doctor, did not witness it, in answer to which the doctor said, he had, but was only attesting her signature, and further added, that he had. said the same thing to Dr. Johns, another of the attesting witnesses, who replied, that she was competent, although he had observed her incoherency. This evidence was objected to on the ground that it was hearsay, and the question is, whether it, or any part of it, falls within any of the established exceptions to the general rule by which such testimony is excluded. The case of Townshend vs. Townshend, 9 Gill, 505, was relied on as an authority for the admission of the evidence under consideration. The question there arose, upon the trial of issues as to the validity of a will propounded for probate, and the offer was to prove certain declarations as to the condition of the testator, made to the witness under examination, by one of the deceased witnesses to the will, for the purpose of rebutting the prima facie effect of his attestation, which evidence was held admissible. The difference in fact between that case and the one before us is this: There, the evidence objected to was admitted upon the trial of issues contesting the validity of a will before probate, and in this, it was offered to impeach a will after it bad gone to probate, and thereby become conclusive as to personalty, and presumptively valid as to real estate. In disposing of the question presented, we have therefore to inquire, whether, the variance shown, is of such a character as to justify the adoption of a different rule from that established by *386tbe decision in Townshend’s Case. Limiting our attention exclusively to that portion of tire evidence showing the declarations of Dr. Teaclrle alone, we think it does not. The Act of 1831, ch. 315, provides, that the probate of a will disposing of real estate, shall be taken only as prima facie evidence of such will, and it was held in 14 Md. Rep., 532, on the previous appeal in this case, that the in-’ tent and effect of that provision was, to throw the burden of proof on those who might make claim to land adverse to title under a will admitted to probate, whether the probate be had in common form or in the more solemn form of a plenary proceeding. The probate of a will, is simply proof of it by the proper tribunal, and as. probate, under the provisions of the Act, has no other effect than to raise the presumption of validity, there is no reason why it may not be assailed, as well by testimony which impairs or destroys the effect of such probative facts as the law requires to be established’in all cases before the probate is allowed, as by proof entirely disconnected from and independent of those facts. The offer of the probate necessarily brings forward such facts as the law requires should be shown in the proof of all wills disposing of real estate, and it cannot be said that any of the evidence thus made necessary by law to the proof of a will, whether it be of fact or rest in presumption, is screened from assault by those against whom the probate is offered, for in contemplation of law, all such facts and presumptions are presented as fixed legal elements of the probate i tself. The probate of such a will, as it does no more than shift the burden of proof by raising a presumption of validity, like any other evidence producing a like effect, may be impeached by any proof that contradicts or impairs the force of that, whiph by statutory provisions or rules of law, must have been offered before the probate was had. In this case Dr. Teackle was the last in order of tbe three persons who witnessed the execution of the will offered in evidence with the probate, and it is clear that the probate could not have even the effect pre*387scribed by tbe Act without some presumption from his attestation in favor of the will. We hold therefore that the offer of the probate of necessity brought forward, with the other evidence upon which if was had, the presumption resulting from his attestation, and that the presumption thus presented, was as much open to contradiction or qualification by proof of such of his declarations as were inconsistent with it, as it was in Townshend’s Case upon the trial of issues before the probate. In our view of the question, the principle upon which the evidence in that case was excepted from the operation of the general rule excluding hearsay testimony, applies with equal propriety end force in this, and we think, therefore, that there was lio error in admitting the evidence of Dr. Teackle’s declarations for the purpose of rebutting the prima facie effect of his attestation. In regard to that portion of the evidence, showing the conversation between Dr. Teackle and Dr. Johns, the question is different, hut conceding that it vas inadmissible, we cannot reverse on the exception as it stands, for according to our settled practice, the appellant loses the advantage of his objection, if any part of the evidence covered by the exception, was admissible. Budd vs. Brooke, 3 Gill, 220. Waters vs. Dashiell, 3 Md. Rep., 455.
In proceeding to the consideration of the several questions presented by the 2nd exception, it may ho remarked, that evidence was offered without objection, from which all the hypothetical facts of the prayers and instructions rejected and granted, might he found, and that none of the prayers rejected or granted, nor of the instructions given in lieu of the rejected prayers, arc open to objection on account of the assumption of any fact.
The 5th instruction of the Court given in lieu of the appellees’ 6th prayer, and the appellants’ 3rd and 5th prayers rejected, with the instruction substituted therefor, submit propositions for the government of the jury in finding the measure of testamentary capacity required for the making of a valid will. The appellant admits that the instruc*388tion substituted for bis prayers, was unobjectionable, but he contends, that the instruction given in place of the appellees’ 6th prayer, is erroneous, because the statement of what constitutes a sufficient testamentary capacity in the terms of the Act of 1798, ch. 101, sub-ch. 1, sec. 3, is followed by an explanation of their legal meaning and effect. We think there is no real foundation for this objection. The explanation of the statutory clause, “of sound and disposing mind and capable of making a valid deed or contrae/,” is entirely consistent with the clause itself, and so clear and explicit that it could not have confused or mislead the jury. The Court of Appeals in Davis vs. Calvert 5 Gill, 269, used the same language in declaring the import and force of the clause in question, and as it does not vary nor qualify the statutory measure in any degree, we can see no impropriety in submitting the words of the statute to the jury in connection with the explanation objected to. We are of opinion that the rule for ascertaining the degree of capacity required for the making of a valid will, was properly prescribed by this instruction, and that there was no error in substituting it for the rejected prayers.
The appellees’ 3rd, 4th, 5th, 9th and 10th prayers, directed the jury that it was their province to decide upon the testamentary capacity of the testatrix, and in doing so, that certain facts, hypothetically presented in the prayers, should, if found, be considered evidence in connection with the other circumstances in the case. The appellant, without denying that-there was evidence of these tacts, nevertheless insisted that all of these prayers were improperly granted. The most, if not all of them, were opposed on the general ground, that the hypothetical manner of presenting the facts, pronounced to be evidence, imported a degree of importance not properly attributable to them that tended to mislead the jury. The obvious purpose of ■these prayers was to remove all doubt, from the minds of the jury as to the propriety of considering the facts thus presented in the connection proposed, and they certainly go *389no further than was necessary to insure that result. In effect, they simply enunciate the proposition, that certain facts which the jury might otherwise have disregarded, constituted evidence on live question of testamentary capacity, and if there was no error in thus declaring those facts to' be evidence, the right of the appellees to these instructions ■could not be questioned. But the 9th and 10th prayers were objected to on the more material ground, that the influence of the appellant upon the testatrix, as also her declarations in the conversation with Mr. Teackle, were not ■evidence which the jury could take into consideration in finding her condition when she executed the disputed wills. The question whether she was competent to make valid testamentary dispositions of her property when the wills of 1845 and 1848 were made, necessarily involved a consideration of the circumstances and influences which surrounded and operated on her mind, as well as of those which tended more directly to show its healthy or diseased condition, for its real state could be made to appear only by proof of its manifestations as related to the influences or ■circumstances inducing it to act, and by the sufficiency and reasonableness of which, its soundness could be tested. For the purpose of showing what her mental condition was, when the wills in question were executed, any evidence of the circumstances and nature of its action, both before and after those periods, was admissible. Davis vs. Calvert, 5 Gill, 269. The 9th prayer did not contemplate the impeachment of the wills on the ground of undue influence, hut the single proposition, that the influence of the appellant was a fact, that bore relation to, and attended their execution, which the jury might consider in passing on the testamentary capacity of the testatrix, and it is not material within the purview of the prayer, to consider whether the influence of the appellant was such as the law permits or prohibits, for the point decided was altogether independent of those consideiations.
Th-e declarations of the testatrix, narrated in the 10th *390prayer, were also properly submitted to the jury under the rule stated in Davis & Calvert, tor the state of her mind at that time, as related to its condition when the wills were made, was undoubtedly a matter for their consideration. It is true that, in form, the prayer presents a somewhat different proposition, but to us, the reason for any distinguishment in principle is not so obvious. Whatever appreciable force these declarations might have had upon the question of mental soundness when they were made, it is clear that in and through that connection, they were, with the other circumstances in the case, evidence which the jury might, consider .in finding the condition of the testatrix, when she executed the will of 1848. Being thus before the jury on the question of testamentai’y capacity at that time, it is difficult to perceive, upon the hypothesis of the prayer, that she was sane and intended to speak the truth when making those declarations, why the direct and consistent,inference authorised by the prayer should not be. permitted. Under no circumstances could the declarations operate as a revocation of the will of 1848, nor could any objection be made to them in the connection proposed by the prayer on that, ground, for, as presented, they go to the question of the.validity of-the will and not to that of its revocation. We think the appellees’ 3rd,'4th, 5th, 9th and 10th prayers were properly granted. The 1st, 2nd, 3rd and 4th instructions given by the Court in lieu of the appellees’ 1st, 2nd and 6th prayers rejected, we find also free from objection. Although covered by the 2nd exception, they were not opposed in the argument of the case, on the-ground of any-material error.
The most important questions in the case, are raised upon the instructions given by the Court in lieu of the appellees’ 7th prayer, and the 3rd and 4th of the appellant. These instructions substantially propound the following propositions: 1st. That if the will of 1847, contained a revoking clause, and was intended by the testatrix to revoke her previous wills, then the will of 1845 did not bar the *391appellees’ right to recover, unless it appeared that she destroyed the former will with the intention of reviving the latter; and 2nd, that if she destroyed the will of 1847, when of sound mind, then its destruction was prima facie evidence of an intention to revive the will of 1845, but if it was destroyed without her knowledge, or by ber when insane, then an intention to revive the will of 1845 could not be presumed.
Our duty in reviewing these instructions, is first to ascertain whether the revoking clause of the will of 1847, was ambulatory and revocable with che will, or a provision that took effect independently 'of the will, and if the latter, then to determine upon the hypothesis stated, tlie legal effect of destroying the will of 1847 upon the will of 1845. The authorities on the first of these questions, undoubtedly establish the principle that an imcqudükmal.revocation is not essentially test ameni ary in its nature, and, like the will containing it, liable U> vary with the testamentary purpose, but a positivo consummated act, producing an immediate and conclusive effect. It is true that where the revocation of a previous will is implied from the inconsistent testamentary provisions of one subsequently executed, the question may be a different one, for in such a case, the revocation of the first will depends upon the testamentary purposes expressed in the last, which of necessity continue to be ambulat,»/ and revocable during the life of the testator. The case of Goodright vs. Glaizer, 4 Burr., 2512, is an illustration of this principle. But a clause in a subsequent will, which in terms revokes a previous will, is not only an expression of the purpose to revoke the previous will, but an actual consummation of it, and the revocation is complete and conclusive, without regard to the testamentary provisions of the will containing it. Burtenshaw vs. Gilbert, Cowp., 49. James vs. Marvin, 3 Conn., 576. Boudinot vs. Bradford, 2 Dall, 266. Walton vs. Walton, 7 Johns. Ch. R., 258. Pow. on Dev., 528. Brown vs. Brown, 92 Eng. C. L. R., 875. These cases also, with the exception of the last, which was decided after the statute 1 Vict., ch. *39226, go to establish the rule that a will, thus expressly revoked, cannot again be revived, except by republication or some other formal testamentary act directly affirming.it; but on this point there is much conflict of authority.
In Harwood vs. Goodright, Cowp., 87, and Goodright vs. Glaizer, 4 Burr., 2512, Lord Mansfield held, that cancelling a revoking will operated to revive the will revoked, and Mr. Jarman, on the strength of these cases, maintains-the same doctrine. There is no doubt a sufficient reason for the adoption of this rule, when the revocation of a previous will results by implication from the inconsistent testamentary provisions of one subsequently executed, tor as before observed, the revocation in such a case is ambulatory and without effect during the life of the testator; or, stating it more accurately, the revocation of the previous will could not even be implied until the will upou which the implication might arise becomes an effective testamentary act. But it is evident that the rule thus generally stated might often operate in derogation of the real testamentary purpose, and if asserted as an established principle of law, it .would not be difficult to imagine cases where its application would at least be questionable, if not productive of hardship and injustice. But whatever effect the real principle involved in the cases cited might have, in, limiting or qualifying the rule sta-ted by Mr. Jarman, a different.doctrine prevails in the Ecclesiastical Courts of England, whose decisions have long been recognized in this-State as authority upon controverted questions of testamentary law. The principle established, by the cases there adjudicated is, that the cancelling of a will containing ai$ express revocation of a previous will does not necessarily revive the will revoked, although the presumption of an intention on the part of the testator to revive the previous-will may be raised by his destruction of the revoking will. In the case of Helyar vs. Helyar, 5 Eccl. R., 416, it was held, that a will, subsequently revoked by another will, could not be revived without “republication or some *393express declaration of tbe testator that he would have the first operate as his will,” and in the case of Moore vs. Moore, 1 Eccl., 123, decided in the High Court of Delegates in 1817, Park and Abbott, both distinguished jurists then sitting, it was held, that the cancellation of a subsequent will by mutilation, did not revive a previous will of nearly the same import. In Usticke vs. Bowden, 2 Eccl. R., 244, Sir John Nicholl in delivering his opinion said, that the true principle to be extracted from tbe judgment of tbe Court in the Case of Moore vs. Moore, was, that tbe legal presumption from tbe cancellation of a revocatory will, is neither adverse to, nor in favor of, the revival of the previous will. The same doctrine as to the presumption from the cancelling of a revoking will was adopted in the subsequent cases of Major vs. Wilson, 7 Eccl. R., 453, and James vs. Cohen, Ib., 585. Tbe question, as to tbe revival of a previous will, thus appears to be reduced to one of fact dependent on all tbe evidence going to show the testator’s intention, and not- one of legal presumption. That the cancellation of a revoking will, prima facie, is evidence of intention to revive tbe previous will, is true, hut it is obvious that the presumption of that intention from the mere act of cancellation may be strengthened, qualified or rebutted altogether, by evidence of the attending circumstances and probable motives of tbe testator. Lawson vs. Morrison, 2 Dall., 286. Boudinot vs. Bradford, Ib., 265. In the absence of such evidence, the proposition, that the act of cancellation alone is evidence of intention to revive the previous will, would certainly seem to he free from objection. We conclude, therefore, that the destruction of the will of 1847, did not revive the will of 1845, unless it was further found that the testatrix so intended, and that the destruction of the will of 1847, if done by her when sane, was prima, facie evidence of that intention.
The objection that the appellees were not entitled to set, up the will of 1847, as a revocation of the will of 1845, because its contents were not proved with sufficient cer*394tainty to have effect as a devising will, in our opinion cannot be sustained. In a case where the revocation of a will results by implication from the testamentary provisions of a subsequent will, the objection stated might be fatal, but these instructions do not proceed on that hypothesis of fact, but on the assumption that the will of 1847, containing an express revocation of the will of 1845, was cancelled or destroyed. Even disregarding the legal consequences of the destruction of this will, it is settled that a will, valid in all its essential parts, but inoperative from other circumstances, may, nevertheless, have the -effect of revoking a previous will. Roper vs. Radcliff, 10 Mod., 233. Beard vs. Beard, 3 Atk., 72. But upon the theory of these instructions, this will, containing a clause by which the will of 1845 had been expressly revoked, was destroyed and rendered wholly inoperative as a devising will, and whether the independent effect of the revoking clause, or the inoperative character of the will be considered, it clearly follows, that the objection stated .cannot be maintained. ■ The authorities relied on by the appellant, are not directly applicable to the question, for they are, most of them, cases in which the revocation of the previous wills was so connected with, and dependent on accompanying testamentary provisions, as to be held conditional and not absolutely effective. The assumption of the alternate proposition, that the will of 1847 was not destroyed by the testatrix, would afford no stronger ground for the appellant to insist upon that will as a bar to the appellees’ right to recover, for the evidence of its testamentary provisions was not of that clear and positive character required to give effect to the instrument as a devising will; and under those circumstances the Court could not have left that fact to the jury, nor instructed them that, if found, it would bar the claims of the appellees. Jarman, 223. Davis vs. Sigourney, 8 Met., 487. Rhodes vs. Vinson, 9 Gill, 169.
The remaining question raised on the appellees’ 11th prayer, whether the part of Lot No. 13, fronting nineteen *395feet on tbe south side of Baltimore street and extending back thirty-six feet on South street, should be considered real and not leasehold property, is simply one as to the legal presumption from the statement of admitted facts, upon which that prayer was predicated. It appears from this statement of facts, that the whole of Lot No. 13, was leased with a covenant for perpetual renewals in 1777, by Nicholas Sogers to Jacob Welsh, and that the portion in question, hv a course of regular assignments, came into the ownership and possession of Patrick Colvin, father of the testatrix, subject to one-half of the rent reserved on the whole lot by the original lease. It also appears that the testatrix, as only surviving child and legal representative of her father, having become entitled to, and taken possession of this property at his decease, afterwards, in 1823, purchased the reversion from Lloyd N. Rogers, the sole heir at law of Nicholas, and ceased to pay the rent reserved from that time, but the written paper purporting to he a deed and duly recorded as such, by which the conveyance of the reversion to the testatrix was sought to be made, was not sealed by the grantor.
The appellant claiming this property as leasehold under the will of 1848, which by probate had become conclusive as to personal estate, objected to this prayer on the ground that those facts were sufficient to explain the possession of the testatrix, and bar the legal presumption of a grant in fee.
The presumption of title from possession arises only when the possession proved, appears to have been perfectly consistent with an unqualified ownership, for the consistency of the possession with such an owner» ship, constitutes the evidential fact from which the law infers that it originated in grant. The correlative proposition, that a grant will not he presumed when the possession is explained by evidence showing that it was taken in virtue of some qualified interest or estate, less than that of an absolute title, is equally well founded, for the legal presumption in that case is, that the possession *396was continued in virtue of the qualified estate, and not adversely to the outstanding superior title. It was said in the case of Gwynn vs. Jones, 2 G. & J., 113, that the mere holding over after the end of a term, was not evidence of adverse possession, and that the person so holding over would be regarded as a tenant at will,' unless he could show that he had held forcibly, or had acquired a title paramount to that under which -the. possession was originally taken. When one holding the equitable title of an estate, has such a beneficial occupation of it as to give reason to suppose the legal title has been conveyed to him, a jury may be advised to presume such a conveyance, but it is unquestionably settled, that there can be no such presumption, if it appears in a special verdict or case stated that the legal title is still outstanding. Reede vs. Reede, 8 Term Rep., 122. Matthews vs. Ward, 10 G. & J., 443. The same principle was asserted in Owings vs. Norwood, 2 H. & J., 96, where it was held that there could be no presumption that the title was perfected by grant, where it appeared that a deed was actually made but defectively executed. In this case the testatrix entered into the possession of the property in question under a leasehold title, and although she afterwards became the purchaser of the reversion from Rogers, she appears not to have obtained an actual conveyance of it by a valid deed. On the contrary, the instrument that was intended to effect the transfer was wholly inoperative for that purpose, and whatever effect it had in establishing an equitable claim to the property, it clearly shows the legal title to be still outsanding. We must therefore assume, on the authority of the cases cited, that the possession of the testatrix was maintained, as it was taken, under her leasehold title, and that it was not adverse to the outstanding legal title to the reversion. It follows, as a matter of course, that the property could not be regarded as real estate, within the purview of this case.
In accordance with the views expressed, we affirm the *397ruling of the Court in tbe 1st exception, and also those in the 2nd, with the exception of that upon the appellees’ 11th prayer, but as we think there was error in granting that prayer, we shall reverse tbe judgment and direct a judgment to be entered for the lessor of the appellees, for the parcels of ground, as described in the paper filed by agreement in this case, as a statement of their claims and pretentions, excepting therefrom the parcel located at the corner of Baltimore and South streets, designated therein as part of Lot No. 13.
(Decided Dec. 11th, 1863.)
Judgment reversed.