
    *Reynolds’s adm’r v. Stephenson’s Adm’x.
    August, 1840,
    Lewisburg.
    (Absent Pabkeb, .1.)
    Administrators — Suit against— Competency of Distrib-utee as Witness ior — Release.—In an action against an administrator, a distributee being offered as a witness for the defendant and objected to by the plaintiff, a deed is produced from the distributee to the administrator, releasing his interest in the benefit of any judgment which might be rendered in favour of the administrator in that action, so far as such recovery might increase the distributable surplus, and also releasing his interest in the decedent's estate, so far as the distributable surplus might be increased by the failure of the plaintiff to recover. Held, the objection to the witness was removed by this release.
    In an action of debt in the circuit court of Kanawha county, between Sarah Stephenson administratrix of Samuel Stephenson, plaintiff, and James B. ■ Rust administrator of the estate of Clark Reynolds unadministered by William Reynolds deceased, defendant, a verdict was found for the plaintiff on the 28th of May 1839, and judgment rendered thereupon.
    At the trial, two bills of exceptions were filed by the defendant, one of which presented a question as to the admissibility of Charles G. Reynolds (a brother of Clark Reynolds), as a witness for the defendant. The parties agreed that Clark Reynolds died without will and without issue, having real and personal estate; that in December 1833 administration of his estate was committed to William Reynolds, his brother, who died leaving a widow and child, which child died and was survived by the widow; that in July 1835 administration de bonis non of the estate of said Clark Reynolds was granted to the defendant; that no inventory or appraisement of the estate of Clark Reynolds has ever been returned to the court which granted the said administrations, nor has any settlement been made of the accounts of either of the administrators, nor any appointment made of commissioners to make such settlement; and that the said Charles G. Reynolds the witness so offered, and two other persons, are the distributees of the estate of the said Clark Reynolds, but that no distribution has been made bjr either of the administrators in the course of their administration. The testimony of the said Charles G. Reynolds being objected to by the plaintiff, on the ground that he was interested in the event of the cause, a release was executed and acknowledged by the said Charles G. Reynolds in open court, in the following words:
    “Know all men by these presents that I, Charles G. Reynolds, one of the distribu-tees of Silas Reynolds deceased and of Clark Reynolds deceased, all of the county of Kanawha, for and in consideration of the sum of five dollars to me in hand .paid by James B. Rust, late sheriff of the county of Kanawha, and as such administrator de bonis non of the goods and chattels, fights and credits which were of Clark Reynolds, have remised, released, confirmed and forever quit claim, and do by these presents remise, release, confirm and forever quit claim unto the said James B. Rust administrator as aforesaid, all right, title, interest, claim or demand which I may or can claim or demand as one of the distributees aforesaid, in and to the benefits of any judgment or recovery which may be had in favour of the said James B. Rust administrator &c. .aforesaid, in a suit at law now depending in the circuit superior court of law and chancery for Kanawha county, wherein Sarah Stephenson adminis-tratrix of Samuel Stephenson deceased is plaintiff, and said James B. Rust administrator as aforesaid is defendant, in as far as such recovery might increase the distributable surplus of the said estate of Clark Reynolds, and of the estate of Silas Reynolds the common ancestor of the said Charles G. ^Reynolds and Clark Reynolds. And I have also remised and released, and do hereby remise and release to the said James B. Rust administrator as aforesaid, all my right, title and interest in and to the estate of the said Clark Reynolds deceased, and in and to the estate of the said Silas Reynolds, and in and to the estate of William Re}rnolds deceased, as one of- the distributees of each of said estates, so far as the distributable surplus of the said estates, or either of them, may or can be increased by a failure of the plaintiff in the above described suit, to recover the amount claimed by her in the said suit. In witness whereof I have hereunto set iny hand and seal this 28th day of May 1839.
    Ch’s G. Reynolds [Seal.]”
    The circuit court was of opinion that this release did not render the said Charlés G. Reynolds a competent witness, and that to render him competent, it would be necessary that his distributive share in the personal estate of the said Clark Reynolds deceased should be released. The court therefore sustained the objection of the plaintiff to the competency of the witness; and the defendant excepted to the opinion.
    On the petition of the defendant, a super-sedeas was awarded.
    B. H. Smith for the plaintiff in error.
    Summers for defendant in error.
    
      
      See monographic note on “Executors and Administrators ” appende dto Rosser v. Depriest, 5 Gratt. 6.
    
   TUCKER, P.

C. G. Reynolds was a dis-tributee, and clearly incompetent unless rendered competent by releases. Janey v. Blake’s adm’r, 8 Leigh 88. He was interested in preventing the recovery of the plaintiff. To get rid :of this interest, he executed a release. Suppose it good and sufficient for that end: he had a further interest that the defendant’s costs in the action, which were payable out of the estate, should be . reimbursed *by a judgment against the plaintiff, unless the liability of his distributable share for a portion of them was released. T-o effect this, a release from the administrator to him of that liability would have been proper. Rowt’s adm’r v. Kyle’s adm’r, Gilm. 202. I do not see how his release to-the administrator can have removed this difficulty. Had he released his whole interest, as the court thought he should do, there could be no question: but as he has not done so,- — -as his release was only of his interest in that controversy, a release from the administrator seems to have been also necessary. If so, the rejection of the evidence was right, and the judgment should be affirmed.

PER CURIAM, Judgment affirmed.  