
    Dorcas Hopkinson, Administratrix of David Hopkinson, v. Town of Guildhall.
    Where a suit is prosécuted by an administratrix for the benefit of the heirs at law of the estate, the heirs, in case of failure to recover, are liable to contribute for the payment of the costs incurred; and one of the heirs, who has received a portion of the estate in land, is not rendered a competent witness for the plaintiff by executing to her a release of all his interest in any portion of the estate growing out of the claim in controversy, — his liability for costs being thereby in no manner affected.
    Trespass on the Case for the default of John P. Denison, constable of Guildhall, in not keeping and delivering up on demand certain property attached upon a writ in favor of the intestate against James Steele. Plea, the general issue, and trial by jury, May Term, 1846, — Kellogg, J., presiding.
    On trial, for the purpose of using John H. Hopkinson, one of the heirs at law of the intestate, as a witness on the part of the plaintiff, the said John executed in court a release of the following tenor;— “Essex County, ss. May 26, 1846. For value received of Dorcas ‘ Hopkinson, administratrix of the estate of David Hopkinson, late ‘ of Guildhall in said county of Essex, I hereby release and discharge ‘to said Dorcas all right, title, interest, claim and demand, which I ‘ have, or may have, to any portion of the estate of said David Hopkineson, growing out of a claim against John P. Denison, as constable ' of said Guildhall, and which claim is now in controversy between ‘said Dorcas, Adm’x, and said town of Guildhall. Witness my ‘hand and seal,” &c. It was admitted, that the estate of the deceased had been so far settled, that the real estate had been divided among the heirs, — a portion being distributed to said John, — and that the personal estate was all consumed in the payment of debts. The defendants objected to the sufficiency of the discharge; but the court overruled the objection and admitted the witness to testify. Verdict for plaintiff. Exceptions by defendants.
    
      Heywood for defendants.
    The release was insufficient, for the reason that John H. Hopkinson was interested in the event of the suit, on account of the costs. If costs had been recovered against the administratrix, she Coüld pay the same and retain the amount, opt of the assets, if she had any; and if not, the heirs who have received Jajids would be bound to contribute for that purpose. Rev. St. c. .49, 45, 46, 48, 49, Fletcher v. Grover, 11 N, H. 369, Ford y. Ford, 17 Pick. 418.
    
      T. Bartlett and Wm, O. Fuller for plaintiff.
    The present question is unlike that raised in Baxter, Adm’x, v. JZuch, 10 Vt, 548, The estate of Ilopkmson had been so far settled, in the present 6aS®, that the real estate had been divided among the heirs, of whom John H. Hopkinson was biíe¡ aííd the personal estate had all been consumed in the payment of the debts. TÍ18 sum recovered will be assets in the hands of the administratrix, and will constitute the whole of the personal estate unconsumed in the payment of debts; and to this the witness has released all his interest. He is not an heir expectant upon the settlement of the estate, but an heir in possession of his share of the estate. The probate court have no authority to decree distribution among the heirs, until after the payment of all liens and charges upon the estate. Rev. St. c. 53, § 3. Then the witness holds his share absolutely, subject to no charge, or lien. If the plaintiff should fail to recover, the defendants’ judgment for costs would constitute no lien upon the estate. How could the administratrix ever enforce such a decree against the estate? The probate court has no power to vacate the former decree, annul the title of the heirs, and order a new and different distribution. But supposing the heirs, in consideration of having been admitted to their respective shares in the •lands of the ancestor, would in equity be bound to contribute ; this would not be true of John H. Hopkinson, who, pending the suit, has released all his interest in the demand. If the heirs, in equity, ■are bound to contribute, contribution should be made by those, only, who are to be benefited by the plaintiffs recovery.
   ’The opinion of the court was delivered by

Kellogg, J.

The only question, presented in this case for the consideration of the court, is as to the correctness of the decision ■ of the county court, in admitting the testimony of John H. Hop.kinson. The witness was an heir at law to the plaintiff’s intestate; and, previous to his admission, he executed to the plaintiff a release of all his interest in the suit. It is, however, insisted, that he still remained interested, being liable, in the event of the plaintiff’s not succeeding in the suit, to contribute to her towards the costs incurred in the prosecution; — and we think this exception is well taken. The suit was prosecuted for the benefit of the heirs at law; and, in case of failure to recover, the heirs would all be liable to contribute to the costs incurred; and the release of the witness to the plaintiff did not discharge him from that liability.

The witness was.incompetent and consequently the ruling of the court below manifestly erroneous; and for this cause the judgment of the county court must be reversed.  