sonal. There was proof that A. T. was an illiterate woman, and could not write. It was also proved by J. B. R. that he did not see A. T. put her mark to the said written renunciation, and that his name signed to it as a subscribing witness was not in his hand-writing, but in the handwriting of E. W. who was then his deputy, and is since dead, and that the whole writing was in the hand of E. W. who was in the habit, but without authority, of signing his, J. B. R's name, as a witness to other than official papers.-Held, that the obliterated paper, purporting to be a renunciation of A. T. was not admissible in evidence. Held also, that the writing, purporting to be a certificate by the register of wills, that A. T. did, on the 25th of November, 1800, renounce the bequest to her in her husband's will, was an act not required or authorized by law. and was not admissible in evidence to prove the execution of a renunciation by her.

Though illegal evidence is received by the inferior Court without objection, it may still be rejected by the Appellate Court. (b)

If an instrument of writing be mutilated, it is prima facie evidence of cancellation; though proof may be admitted to show that the mutilation was by accident or fraud. (c)

In this action it was admitted that no guardian had been appointed for the equitable plaintiff during her minority, which expired on the 10th of March, 1814, when she arrived at the age of 16 years-Held, by the County Court, that she was not entitled to interest on the sum claimed by her except from that period.

APPEAL from Worcester County Court. Debt upon the testamentary bond, executed on the 27th of November, 1800, by Ann Townsend, as the executrix of Levin Townsend, with Thomas R. Handy, (the defendant and now appellant,) and James Atkinson, her sureties. The defendant pleaded general performance. The replication stated that Levin Townsend by his will, amongst other things, bequeathed to his wife Ann all his personal estate during her widowhood, and at the expiration of her widowhood, that all his personal estate "should be equally divided between his two daughters Nancy and Sarah, or either of them dying, all and each part to the surviving sister, except an heir of either's body, then and in that case to the children of the above mentioned daughters." That Ann, the widow, after the death of Levin, within 90 days after the* authentica44 tion and probat of the will delivered to the Orphans' Court a written renunciation of any bequest or devise made to her by the said will, and did elect to take in lieu thereof her dower or legal share of her said husband's estate, which entitled her by law to onethird part of the clear balance of her husband's personal estate. That on the 4th of September, 1801, in the life of the said Ann, who is since dead, there remained in her hands, as executrix of the said Levin, of the clear estate of the said Levin, as settled by her

(b) But see Rev. Code, Art. 71, sec. 7.

(c, See Wickes vs. Caulk, 5 H. & J. 29; E'delin vs. Sanders, 8 Md. 118; Riswick vs. Goodhue, 50 Md. 57; Semmes vs. Semmes, post, m. p. 388.

after all payments, allowances, and her thirds deducted, the sum of $444.09, as by her account, passed and allowed by the Orphans' And that Sally Townsend, at whose instance and for whose use this action was brought, and who is the same Sally or Sarah mentioned in the said will, and as such entitled to the clear estate of her father by virtue of his will, and by reason of her having survived her said sister Nancy, who died an infant in the life-time of her father, and without leaving issue, or ever having had issue. Breach, the non-payment of the said sum of $444.09, &c. The rejoinder stated that Ann, the widow, did not, within 90 days or at any time after the authentication and probat of the will, deliver to the Orphans' Court a written renunciation of any bequest or devise made to her by the will, and elect to take in lieu thereof her dower or legal share of her husband's estate. Issue joined.

1. At the trial the plaintiff offered in evidence the bond upon which the action was brought, and the will of Levin Townsend, dated the 24th of September, 1800, bequeathing (inter alia) as follows: "Item. The lot on which I now live, and all the rest of my property, I leave unto my beloved wife Ann Townsend, during her widowhood. At the expiration of each, my will is, the property above mentioned should be equally divided between my two daughters, Nancy and Sarah, or either of them dying, all and each part to the surviving sister, except an heir of either's body, then in that case to the children of the above mentioned daughters;" and he appointed his wife Ann his executrix, and John Cottingham his executor. The will was proved by Ann, the executrix, and by the subscribing witnesses, on the 25th of November, 1800, and letters * testamentary, which were offered in evidence, were granted 45 to Ann, the executrix, on the 27th of November, 1800. The plaintiff then offered in evidence the following acknowledgment of the renunciation of Ann Townsend, the executrix, purporting to have been made before James B. Robins, register of wills for Worcester County, viz. "Worcester County, sct. The 25th day of Novr. 1800, then came Ann Townsend, the widow of Levin Townsend, late of Worcester County, deceased, and quitted claim to the several bequests and devises made to her in the will of her said husband, deceased, and elected in lieu thereof her dower or third part of the deceased's estate, both real and personal.

Before, JAMES B. ROBINS, Reg. W. W. C." The plaintiff then offered the following paper in evidence, after proving that it was an exact copy from the original endorsement on the said will: "Novr. 25th, 1800, came Ann Townsend, & (a) [Novr.. 25th, 1800, and Worcester County, sct. hereby I hereby certify, that she did hereby renounce ally her right and title.

(a) The part here in crotchets was all crossed and obliterated, and where blanks are left the words were not intelligible.

to my said husband Levin Townsend will, and electietieth in lieu thereof to take my third part of my said husband estate, both real and personal.

her

ANN TOWNSEND.

mark

Test. JAMES B. ROBINS, Reg. W. W. C."]

The plaintiff proved also, that the said Ann Townsend was an illiterate woman, and could not write. The plaintiff then produced the original will, and called James B. Robins, the subscribing witness to the last mentioned endorsement, who testified that he did not see Ann Townsend put her mark to the said paper, and that his name signed to it as a witness is not in his hand-writing; but proved that a certain Ezekiel Wise was his deputy, and that the whole writing was in the hand-writing of Wise, who is dead. And also proved that he Robins was the register of wills of said county, and that * Wise, his deputy, was authorized to sign his Robins' name 46 to all official acts, but was not deputed to sign his name as a witness to other papers; but that he Wise was in the habit of doing so. The defendant on his part objected then to the said paper, purporting to be a renunciation, going to the jury as evidence. But the Court, [ROBINS and WHITTINGTON, A. J.] overruled the objection, and permitted the paper endorsement last mentioned to go to the jury. The defendant excepted.

2. It having been admitted that no guardian had been appointed or existed for Sally Townsend, the equitable plaintiff, during her minority, which expired on the 10th of March, 1814, at which time. she arrived at the age of sixteen years, the defendant prayed the Court to direct the jury, that the plaintiff could not recover interest on the sum claimed by her but from that period. This direction the Court, [MARTIN, C. J. and ROBINS, A. J.] gave to the jury. The plaintiff excepted; and the verdict and judgment being against the defendant, he appealed to this Court.

The cause was argued before BUCHANAN, C. J., EARLE, STEPHEN, ARCHER, and DORSEY, JJ. by Wilson and A. Spence, for the appellant; and J. Bayly and Tingle, for the appellee.

BUCHANAN, C. J. delivered the opinion of the Court. By the Act of 1798, ch. 101, sub-ch. 13, s. 2, it is provided that a widow should be barred of her right of dower in the land, or share in the personal estate of her husband, by any devise to her of land, or any estate therein, or bequest of personal property, in his will, unless within ninety days after the authentication or probat of the will she shall deliver or transmit to the Court, where such authentication or probat hath been made, a written renunciation in the form therein prescribed, or to the same effect.

On the 24th of September, 1800, Levin Townsend made his will, in which he bequeathed the whole of his property to his wife Ann Townsend, during her widowhood, and after, to his two daughters

Nancy and Sarah, and the survivor, &c. and appointed * his 47 wife his executrix, who executed and filed her bond according to law, in the proper office, with Thomas R. Handy, the appellant, as one of her sureties, and took out letters testamentary. Nancy Townsend died in the life-time of her father, without having ever had any issue; and this suit was instituted on the testamentary bond of Ann Townsend, the executrix, who was at that time dead, against the appellant Thomas R. Handy, one of her sureties, at the instance and for the use of Sarah Townsend, the surviving daughter of Levin Townsend, to recover two-thirds of what remained in the hands of Ann Townsend, of the clear personal estate of Levin Townsend, after payment of all demands, &c. against the estate, and a final settlement in the Orphans' Court.

The appellant, who was defendant below, pleaded general performance of the condition of the bond by Ann Townsend, the executrix; and the replication, after protesting that Ann Townsend had not performed, &c. all that was required of her to be performed by the condition of the bond, &c. alleges, inter alia, that she did, within ninety days after the authentication and probat of the will of Levin Townsend, deliver to the Orphans' Court of Worcester County, where the authentication and probat were made, a written renunciation of the bequest made to her in the said will, and election to take in lieu thereof her dower or legal share of her husband's estate, whereby she became entitled by law to only one-third part of the clear balance of his personal estate. On this allegation in the replication issue was joined. On the back of the will is an endorsement by the register, that on the 25th of November, in the year 1800, Ann Townsend came and made oath that it was the true and whole will of Levin Townsend that had come to her hands or possession, and that she did not know of any other. Immediately following is also an endorsement of the same date, every line and word of which, except the date, is cancelled and obliterated by a pen being drawn through each, purporting to be a renunciation, (in substance such as is required by the Act of 1798, ch. 101, sub-ch. 13, s. 2,) executed by Ann Townsend, by making her mark, and also purporting to be attested by James B. Robins, the then register of wills, both whose names, together with the mark, being also in like manner obliter48 ated. Then follows another endorsement, purporting to be a certificate by James B. Robins, the register of wills, that on the same day, (the 25th of November, 1800,) Ann Townsend appeared and quitted claim to the several bequests and devises made to her in the will of her husband, and elected in lieu thereof her dower or third part of his estate, both real and personal. After which, and

as of the same date, is the probat, also endorsed on the back of the will.

At the trial of the cause, the will, and the endorsement purporting to be a certificate by the register of wills, that Ann Townsend had renounced the bequest to her by her deceased husband in his will, having been first given in evidence, as appears by the statement in the bill of exceptions, the obliterated endorsement, purporting to be a written renunciation executed by Ann Townsend by making her mark, was offered in evidence accompanied by proof, on the part of the appellee, who was plaintiff below, that Ann Townsend was an illiterate woman, and could not write; and also by the testimony of James B. Robins, who was sworn on the part of the appellee, that he did not see Ann Townsend put her mark thereto, and that his name, signed to it as a subscribing witness, was not in his hand-writing, but in the hand-writing of Ezekiel Wise, who was then his deputy, but is since dead; and that the whole writing was in the hand of Wise, who was in the habit, but without authority, of signing his name as a witness to other than official papers.

The reading of this obliterated paper in evidence to the jury, was objected to on the part of the appellant, (the defendant below,) but the Court, before whom the cause was tried, overruled the objection, and permitted it to go to the jury; and the question presented to this Court for decision is, whether it ought to have been so admitted? And it seems to us that it ought not.

*

When an instrument of writing is produced, which purports to have been attested by one, whose name is subscribed as a witness, the law requires it to be proved by the testimony of such subscribing witness, and will not dispense with such proof, unless it can be shown that the testimony of the subscribing witness cannot be pro49 cured, by reason of his absence, death, interest, or other disqualification, arising subsequent to the attestation; in which case evidence may be given of the hand-writing of such subscribing witness; in addition to which it is also usual to prove the signature of the party. And this strictness, in relation to a subscribing witness, is observed on the ground, that the parties, by selecting him as a witness, have agreed to rely upon his testimony in relation to the execution of the instrument, and the circumstances attending it, and because he is supposed to have a knowledge of facts and circumstances which are unknown to others.

But although a subscribing witness must be called, except where it satisfactorily appears that his testimony cannot be had, yet the party is not concluded by his testimony; as, if he denies his attestation, it may be proved by other witnesses; or if he denies the due execution of the instrument, other testimony may be resorted to, to prove it, &c.

So, where it can be proved, that the name of a person appearing as a subscribing witness to an instrument of writing, was written by