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 Jinn Townsend, during her widowhood, and after, to his two daughters Nancy and Sarah, and the survivor, &c. and ap*47pointed his wife his executrix, who executed and filed her bond according to law, in the proper office, with Thomas JR. Handy, the appellant, as one of her sureties, and took out letters testamentary. Nancy Townsend died in the lifetime 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 It. 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 Toionsend, 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 oí 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 ah 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, *48together with the mark, being also in like manner obliterated. Then follows another endorsement, purporting t.o 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 Jinn Townsend had renounced the bequest to herbyher deceasedhusband in his will, haying 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 Jinn Townsend by making her mark, was offered in evidence, accompanied by proof, on the part of the appellee, who was plaintiff below, that- Jinn 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 Jinn Townsend, put her. mark thereto, and that his name, signed to it as a, subscribing witness, was not in his handwriting, but in. the handwriting 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, overrated the, objection, and permitted it to go to the jury; and the question presented; to this court for decision is, whether it ought to fiaye been, so admitted ? Apd 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 xvitness, 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 *49subscribing witness cannot be procured, by reason of his absence, death, interest, or other disqualification, arising subsequent to the attestation; in which case evidence may be given, of the handwriting 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 another, without his knowledge or assent, the party may be permitted to prove it, and in such case, he is not to be considered as an attesting witness.

In this case James B. Robins, whose name appears as a subscribing witness, having.provedthathedid not see Jinn Townsend make her mark to the paper in question, and that his name signed to it as a witness, was not in his handwriting, it stood as an instrument without an attesting witness, and subject to be proved by any other admissible evidence. Was. there any other admissible evidence then offered to prove its due execution? If there was, we have not been able to discover it embodied in the first bill of exceptions. Surely the proof by James B. Robins, that the whole of it was in .the handwriting of Ezekiel Wise, his deputy, who was dead at the time of the trial, furnishes no such evidence; nor affords the slightest ground of presumption that it was executed by Jinn Townsend-, if it did, there would not be much difficulty in authenticating any forged instrument, purporting to have been executed by making a mark, after the death of him by whom it was procured to be Written, or supposed to be written. This remark is not tnade *50under any impression that Wise intended to commit a forgery, but only on account of the general principle. Nor does it derive any aid from the circumstance that Wise was in the habit of improperly subscribing the name of James B. Robins as a witness to other, than official acts, and cannot be favourably distinguished from any Other instrument, not written by the party by whom it purports to have been executed, but must stand on the same footing, and be proved only in the same way.

The writing, purporting to be a certificate by the register of wills, that Jinn Townsend did, on the 25th of November 1800, renounce the bequest to her in her husband’s will, is an act not required, or authorised by law, and ought not to have been admitted in evidence to prove the execution, by her, of the instrument purporting to be her written renunciation. It stands upon no higher ground then than the mere declaration's of a third person, which, except when they relate to matters that may be proved by hearsay evidence, such as pedigree, boundaries, &c. are wholly inadmissible, whether they be reduced to writing or not; and being inadmissible, this case is to be considered as if that certificate had not been used in evidence, and was not now in the record, on the authority of the case of Gittings’s Lessee vs. Hall, 1 Harr. & Johns. 14, in, which the former court of appeals reversed the decision of the general court, on the ground that a deed, which was read in evidence without objection, as a link in a ehain of title to land, appeared to be defectively executed, and was not therefore legally admissible in evidence; which principle was also recognized by this court in the case of Whittington vs. Farmers Bank of Somerset and Worcester, 5 Harr. & Johns. 489, and 6 Harr. & Johns. 548, in relation to the admission in evidence of a protest of a promissory note. And stripped of that certificate, what is therein the record affording the semblance of evidence that Jinn Townsend executed the cancelled instrument purporting to be her renunciation, or even laying any foundation for such a presumption? But it has with much ingenuity been contended, that the certificate in question was a part of the res gesta, and therefore admissible. But whether evidence be admissible or not, is always a question for the court to decide; and before it can be admitted, on the ground *51that it was a part of the res gesta, it niusf appear to the court • to have been so. Now, in this case'there is nothing to show that that certificate was a part of the res gesta, it has no direct reference to the paper objected to, nor is there any' thing to show that it has any relation to it. Indeed, if that instrument, supposing it to have been ever executed, was cancelled before the certificate was written, it was not a renunciation, and the certificate could not have related to it. It does not fall within the principle that admits entries and declarations to be given in evidence as a part of the res gesta.

But conceding that having been admitted, it must now be treated as constituting a part of the evidence in the case, it cannot be considered as affording any the slightest proof of the due execution of the instrument attempted to be set up as the renunciation of Jinn Townsend. Until it was lodged in the office, it could not operate as her renunciation, and was liable to be cancelled at her pleasure.

If it was in fact duly executed and lodged in the office, it was her renunciation perfectly without her control, and could not have been legally cancelled by any body. And as the certificate could not have related to that paper, if it had been before cancelled, and not lodged in the office, seeing that it purports to speak of a subsisting renunciation; so neither can it be taken to relate to it as a duly executed paper lodged in the office, without supposing it to have been obliterated by the officer or his agent, and thus supposing him to have committed an offence, for which he deserved to be punished. Not' the slightest presumptive evidence, therefore, of the due execution by Jinn Townsend of that paper, is furnished by the certificate of the register.

It is a well established rule, that if an instrument of writing be mutilated, it is prima facie evidence of cancellation; though proof may be admitted to show that' it was done by accident, or effected by fraud, &c. In this ,case the instrument attempted to be set up is obliterated, and no evidence appears in the record to show that it was done by accident or fraud, or how it was effected; the condition, therefore, in which it appears, is prima facie evidence that it was regularly cancelled; *52and it ought not, in our opinion, to have been permitted to g<s to the jury.

JUDGMENT REVERSED.