delivered the opinion of the Court.
A paper was admitted to probate by the Orphans’ Court of Baltimore City, on the 30th of July, 1870, as the last will and testament of John Mason, and the appellee was appointed administrator of his estate cum testamento annexo. Subsequently on the 2nd of January, 1874, the appellants, the next of kin of the deceased, filed a caveat asking that probate of this paper be revoked, and that certain issues be sent to a Court of Law for trial. After answer by the appellee eight issues were by order of the Orphans’ Court sent to the Superior Court of Baltimore City for trial. In the latter Court all the issues were Avitlidrawn except the first and seventh, which are as follows:
1st. Is the paper writing purporting to be the last will and testament of John Mason, deceased, which was admitted to probate on the 30th of July, 1870, the complete and final last will and testament of said deceased, and was it intended by him to operate as such without any addition, alteration or alterations ?
7th. Whether if at the time the paper aforesaid was written by the said Mason, he intended to complete the same by subsequently adding anything thereto, he subsequently abandoned such intention and recognized, and adopted the said paper as his last will in its present shape?
At the trial, exceptions were taken to several rulings of the Court, which this appeal presents for review. Two of them relate to the admissibility of evidence, and the *362others to the prayers, and. we shall dispose of them in their order.
1st. By a fair construction of the first exception we are of opinion it embraces th,e ruling allowing the order of probate to he read to the' jury as evidence, as well as that permitting the probate and affidavit of Harman to be read to the Court in the presence of the jury. It appears that the substance of Harman’s affidavit, to the effect that Mason shortly before his death showed him this paper and declared to him it was his will, was written out on the back of the paper itself when it was offered for probate, and that the same affidavit in full, with that of another witness and the probate order were on another piece of paper, which was attached in the usual way to the paper purporting to be the will.
The caveators offered in evidence the alleged will, but did not read in evidence these affidavits or probate. The caveatee then offered to read to the Court and jury both the order of probate and these affidavits. The caveators objected to the reading thereof, hut the Court overruled this objection, and decided the probate might be read to the Court with the affidavit of Harman, to show that the Orphans’ Court acted upon the evidence contained in that affidavit, although (as the exception states) such reading was not necessary, the fact of the probate of the disputed paper having been admitted on both sides, hut that the affidavit could not be read to the jury as competent evidence to them of any facts contained therein, and accordingly permitted the.probate and affidavit to be read to the Court in the presence of the jury, for the purpose only for which the Court had decided the reading thereof to be proper, and the probate without the affidavit to be read to the jury which was done. The caveators then excepted to the overruling of their objection and to the decision of the Court, and permission to read the said probate to the Court as aforesaid, and to the reading thereof. It thus appears *363tlieir objection included the reading of the order of probate to the jury, that the Court overruled the objection, that they excepted to this overruling, and that the order was in fact read to the jury. This seems fairly to present the question whether there is error in this ruling, and we are of opinion there is. The fact of probate was not only conceded on both sides, but admitted in express terms in the issues themselves. What the jury were to determine was, whether this paper was the complete and final will of the deceased, intended by him to operate as such in its present shape without alteration or addition. Upon this issue, evidence that the paper had been admitted to probate, was wholly irrelevant. The question is very similar to that presented in the case of Brooke vs. Towshend, 7 Gill, 26, where the issues assumed the factum of the will, and the Court held that proof of its execution was an act of supererogation, and that the evidence on that subject was therefore to be treated as irrelevant, incompetent and inadmissible. The fact that this order formed part of the proceedings of the Orphans’ Court, accompanying the issues sent down for trial, does not authorize it to be used as evidence before the jury on the trial of such issues. They were not required to try the issue of probate vel non, and indeed no such issue could be submitted to them. Whether the probate should stand or be revoked was a matter to be determined by the Orphans’ Court, upon subsequent consideration of the findings of the jury on these issues. Nor can we say the admission of this evidence did not prejudice the caveators. The order was signed by the three Judges of the Orphans’ Court, and states that the Court “after having carefully examined the above last will,” (this very paper,) “and also the evidence adduced as to its validity,” had ordered it to be admitted to probate “as the true and genuine last will and testament of the deceased.” Now much of the caveators’ case rested upon the appearance of the paper itself, *364the fact that it was not signed by the alleged testator though written by him, that it contained no clause appointing executors, though it directs funeral expenses to be paid by “ my executors hereinafter named,” its interlineations in pencil, and its condition of apparent mutilation by cutting. They had the right to rely upon this before the jury, upon the questiop of intention submitted' to their finding: It is impossible for us to say this order
had no influence upon their verdict, embodying as it does the opinion of judicial minds, professing to be formed in part from an inspection, and careful examination of the same instrument. It would naturally carry with it such influence, and that it was intended it should have this effect, by the caveatee who offered it, we hav-e no doubt, for we can conceive of no other purpose for which he could have used it. Nor is this difficulty removed by the fact, appearing in the record, that the cross-examination of a witness was suspended for a time that the caveators might submit the original will, (to which the probate and affidavits were attached) to the inspection of the jury. They did not offer the probate and affidavits in evidence, nor attach them to the paper, nor ask the jury to inspect them, and it does not appear the jury did so. What they submitted and requested the jury to examine was the paper purporting to be the will. This ruling must therefore be reversed and a new trial of the issues awarded.
This exception also shows that the affidavit- of Harman was read to the Court in the presence of the jury. It was certainly just as irrelevant to the trial of these issues, for the Court as for the jury, to know that the Orphans’ Court had acted on the evidence contained in this affidavit, in admitting the paper to probate. But whatever effect this proceeding may have had upon the jury prejudicial to the caveators, it was removed by the granting of their fifth prayer, by which the jury were instructed that this affidavit was not evidence in the cause, proper to be considered by them as proof of any fact therein sworn to. *3652nd. The testimony of certain witnesses to the effect that Poulson, the administrator c. t. a., and caveatee, had told them that Mason had said to him in conversation, that it was not his intention that this paper should operate as his will, was offered (subject to exception,) as testimony in chief hy the caveators. Subsequently the Court, hy granting the caveatee’s .first prayer, excluded this testimony from the consideration of the jury as secondary or hearsay evidence. In this we discover no error. What Mason said in respect to this paper was undoubtedly evidence, and strong evidence under these issues, hut we think there is no ground upon which the caveators can escape the necessity of proving it hy those %uho heard Mason make the statements, or declare his intention on that subject. Proof hy other witnesses that Poulson said, that Mason had said he did not intend this paper to he his will certainly comes within the rule so important, and well established which excludes hearsay evidence as totally inadmissible. The ground upon which counsel lor the caveators contend for the admissibility of this testimony is, that it proves admissions made hy Poulson, a party to the record, and after he became administrator with the will annexed. There can be no doubt of the correctness of the position, that the acts and admissions of a party to the record are evidence, although he he but a trustee for another, provided, they he made and done after# he is clothed with the office, or has acquired the interest. The law regards such admissions as declarations hy the party against his interest, at the time they were made and therefore probably true. This is a well settled rule of evidence and finds constant application in nisi prius trials, hut like other similar rules, Courts in its application to particular cases, must consider the nature and character of the admissions proposed to he offered, their relevancy to the isstie on trial, as well as the scope and purpose of the issue itself. So considered, our judgment is that the *366declarations sought to he introduced in this case are not of the character to which the rule applies. The question presented by these issues and upon which the jury were to pass, is simply whether Mason’s testamentary intent was finally expressed in the paper-writing before them. Sis declarations on the subject were evidence whether he so intended or the contrary. Such declarations either way must be proved by those who heard him make them, and not by proving that some one who heard them, said he heard them, and it makes no difference whether such say so came from the administrator or a party to the proceedings or not. Here Poulson himself was not only a competent witness, but actually testified in the cause as to what Mason did say to him on this subject. The caveators, themselves, could have placed him on the stand, and if his testimony was against them, could have rebutted it by opposing proof, or by his admissions proved by other witnesses. Act of 1864, ch. 109, sec. 4. Or they could, when examined, on his own offer, by appropriate questions on cross-examination, have laid the foundation for contradicting or impeaching him, and have used the testimony of their witnesses as to his declarations, for that purpose. Instead of adopting either of these modes, they offered this testimony as to what he said Mason had said on the subject, as direct and primary proof of the latter’s intention respecting this paper. In our opinion, the Court below properly treated such testimony, as secondary or hearsay evidence. We have carefully examined the ruling in Davis vs. Calvert, et al., 5 G. & J., 306 to 308, chiefly relied on by the appellants’ counsel, and, in our judgment, it is not, as they insist, a conclusive adjudication of the question before us. That case was a very peculiar and remarkable one. The issues presented, not only the question of testamentary capacity, hut whether the alleged will had been procured by undue influence or by the fraud or misrepresentation^ of the caveatees, or either *367of them. The declaration of Calvert, the executor and one of the caveatces, which the Court there admitted, tended to prove the issue of fraud, and to show his participation therein. The Court admitted it as a link in the chain of evidence on that subject. This, we take it, is the ground upon which that ruling is placed, and what the Court said respecting the admissions of a party on the record being always admissible, and as not falling within the principle excluding hearsay testimony, is simply an enunciation of the general rule which they held applicable, on the ground above stated, to the admission they were then considering. This is plainly apparent from what is said by the Court on page 308, viz: “If the offer had been of evidence of an acknowledgment by Calvert, that he had forged the will or extorted it by threats or violence, there would have been no difficulty aboirt it. Here indeed the offer was of evidence of a circumstance only; but though a mere circumstance it was one tending to prove the issue of fraud, and which, when connected with others might be found an important link in the chain.” The distinction between that case and the present is very obvious. Here the issues are not only different but the proposed testimony is altogether of a different nature, and character. The one falls strictly within the rule governing admissions as such, the other is purely secondary or hearsay evidence, and falls within the rule on that subject.
3rd. Nor do we find any error justifying a reversal in the rulings excepted to upon the other prayers.
The first four instructions asked by the caveators, to the effect that if the jury believe from the evidence, that this paper was not intended by Mason as his complete and final will, but that he intended to make alterations or additions thereto, then they must find for the caveators on the first issue, the Court granted, with this modification, viz: “that by the alterations or additions referred to in *368the instructions granted by the Court, is meant alterations or additions in matters of substance, and not alterations or additions in the mere form of the instrument, and not in its substance.” It is to be observed, that neither the instructions in their original shape, nor the Court’s modification thereof, attempt to point out to the jury what particular alterations or additions would be in matters of substance, and not form, or vice versa. Nor does it appear by the record that any exception was taken at the trial to the modification on the ground that it submitted a question of law to the jury,, and therefore no such objection can be raised in this Court. The general legal proposition embodied in this modified instruction, that the intent to add to, or alter such a paper in mere matters of form and not of substance, would not prevent it from operating as a will, was not denied in argument, and is ^unquestionably true. But it was said the modification altered indefinitely the issue to which the prayers referred, and, under it, the finding of the jury would be no answer to the question presented to them by the first issue. It is true by the literal reading of that issue the question is, whether the paper was intended by Mason to operate as his last will “without any addition, alteration or alterations,” which would include alterations or additions in mere matters of form not affecting its validity as a will. But it would have been an idle and useless proceeding in the Orphans’ Court to have ordered the trial of an issue of that character, and an equally useless waste of time in the Court of Law to try it. What it was important for the Orphans’ Court to know, was, whether there was an unexecuted intention to alter it in such particulars as to prevent the paper from being admitted to probate as a will, and the issue must be read and construed as presenting that question to the jury. The Superior Court rightly so construed it, and there is no error in this modification open for revision by this Court.
*369By tlieir sixth prayer the caveators asked the Court to instruct the jury, that if they believe from the evidence, that Mason had selected the caveatee, Poulson, as his executor, and continued so long as he was in condition to execute a valid deed or contract, to desire said Poulson to be his executor, then this paper was not intended by him to operate as his complete and final will and testament, without any addition or alteration, and they must find for the caveators on the first issue. This the Court refused as offered, but granted it with this proviso; “Provided they shall find that he desired to carry such selection into effect by the execution of a new paper, or the insertion of Poulson’s name in this.” In so modifying the paper the Court properly instructed the jury what desire to appoint an executor would, if unexecuted, render the paper inoperative as a will. If Mason merely had a desire that Poulson should be his executor, but was undetermined in his mind as to the manner in which that desire should be carried out, it would have no such effect. To render the paper inoperative as a will, on this ground, he must have desired to carry his selection into effect in one of the only modes in which he could have lawfully accomplished it, that is, by the execution of a new paper, appointing Poulson his executor, or by the insertion of his name in this. We discover no ground upon which this qualification or proviso is objectionable.
Tlieir seventh prayer was rejected upon the grounds that it was unnecessary and calculated to mislead the jury. The paper was in evidence and inspected by the jury. Its condition and appearance were fair subjects of comment and argument before the jury upon the question of intent, and in this respect it does not appear the counsel for the caveators were in any manner restricted. But it was wholly unnecessary to ask a specific instruction that it bore on its face evidence that it was not intended by Mason to operate as his complete and final will. That it contained *370such, evidence was determined or conceded when it was admitted to go to the jury, and was allowed to he inspected by them. Unless conclusive of the case, or of the question of intent, the Court was entirely right in refusing an instruction which would tend to impress the jury with the idea that more importance was to he attached to it than any other testimony on the same subject given in the cause. The importance, weight and hearing of this testimony, were matters to he left altogether to the argument of counsel. It is not the practice in this State for Courts to instruct juries that: particular items of proof, or the testimony of particular witnesses, are evidence of the facts they were offered' .and admitted as tending to prove, and it is no ground of - complaint, if instructions. to that effect are refused 'when asked for. , : .
The Court also refused their-eighth: prayer to the effect that, if at the time he wrote the paper, Mason intended to complete it by subsequently adding anything thereto, then there is no evidence he subsequently abandoned that intention, and recognized and adopted the paper as his last will and testament in its present shape, and the jury must, therefore, find for the caveators on the seventh issue. Their second, third and fourth prayers, which the Court granted, at their instance, (with the modification above referred to,) concede there was some evidence before the jury on this subject. But, apart from this, we have carefully éxamined the testimony contained in the record, to ascertain whether there' was .any evidence legally sufficient to authorize the .jury-to ■ •infer-and find the abandonment and subsequent recognition and adoption referred to in this prayer, and are of opinion there was. Among other things Poulson testified that shortly before his death Mason said to him, “that it had been his desire to insert in his will a legacy to his nephew (Rev. Mr. Baptiste,) but says he ‘ never mind I am satisfied with it, as it is.’ ” We cannot say the jury might not properly have inferred that, in this *371last expression, Mason referred to the alleged will, and not to the legacy. This instruction was therefore properly refused.
(Decided 18th June, 1874.)Their ninth prayer was properly rejected, because it was based upon an issue which had been withdrawn.
This disposes of all the rulings which the record presents for review. While upon all others there would be an affirmance, yet, as we have already said, for the fatal error in the ruling in the first exception, there must be a reversal and a new trial of the case.
Ruling reversed, cmd neto trial awarded.