The opinion of the court was delivered by
KenNedy, J.
—The first question which presents itself in this Case is, was the execution of the release of Catharine, one of the plaintiffs dum sola, and under the age of twenty-one years, a discharge of the defendant from his liability to her on the recognizance upon which the scire facias has been sued out? It is proper to note here that John Knisely, who was the guardian of this plaintiff at that time, was also surety of the defendant in the recognizance* Under this arrangement the land was not only bound as security to her for her proportion of the valuation money, but the defendant and his surety were both personally bound to her. By the' subsequent agreement in pursuance of which the release was given, it is manifest that her security for, her proportion of the appraisement of the land was materially lessened, and therefore it could not be for her benefit. Infants are only capable of making contracts for necessaries, such as are considered in law clearly for their advantage, [337]*337or of doing those things voluntarily which by law they might and could be compelled to perform. These, when fairly made and done, will be valid and binding, but generally all contracts of a different or opposite character, will not be regarded as having any binding force or authority whatever upon minors. I therefore consider her execution and delivery of the release no bar to her claim upon the recognizance. It appears to be executed by John Knisely; but it does not appear from the manner in which he set his name and seal to it, that he intended to execute it as her guardian; nor has he thereby declared for whom he intended to execute it. He, however, was guardian also at that time for Joseph Hantz, the brother of Catharine the plaintiff, and equally interested with her in the recognizance, and his name is not to the agreement, may be that he intended to execute for him. Be that, as it may, I think, under the particular circumstances of this case, it was not competent for him as the guardian of Catharine, to bind her or bar her of her right under this recognizance by executing that release. He was directly interested, in extinguishing the recognizance; he was himself bound by it and answerable to Catharine his ward for whatever in any event might be coming to her on it. The law will therefore view any act of his going to discharge this recognizance without an actual receipt of the-money due upon it, with extreme jealousy. In addition to this, it would have been a diminution of- the security as well as an attempt to release himself, and a direct violation and abuse of his trust and authority as her guardian, and therefore invalid, and not binding upon her.
It remains in the next place to be considered, whether the land, which formed the consideration for entering into the recognizance, being taken away from the defendant or his assigns by a sheriff’s sale, under judgments against the administrators of the intestate for debts owing by him at the time of his decease, ought to exonerate him from all obligation under it. Before, and at the time that the defendant elected in the Orphans’ Court to take this land at its appraisement, and entered into the recognizance, he, the plaintiff, Catharine and their brothers and sisters, were the unquestionable proprietors of it in fee simple; holding it subject to the payment of the debts of the intestate, (their ancestor) from whom it descend ed to them. Each of them was the owner of an equal undivided ninth part, subject to the widow’s claim of dower. The nature and extent of their respective rights in the land, must have been known and understood by all of them. The defendant was one of the administrators of the intestate, and must be presumed to have known at least as much, if not more, than the other heirs. The plaintiff had just the same right to participate in the enjoyment of this estate that the defendant had, and he could not have obtained the pos[338]*338session of her right in it, and continued to enjoy it for any le..p i of time, without allowing, or at least a'greeingto allow her a suitable equivalent for it. He obtained á night to, and took possession of it, under a decree of the Orphans’ Court upon his entering into the recognizance, upon w.hich this suit is founded, binding himself to pay to the plaintiff a fair price for her interest in the land. Unr. der this decree and stipulation of' hisy he and others under him, continued to "receive and enjoy exclusively all the rents, issues and profits that could be derived from the actual possession and occupation of this land from the l-3th of April, 1823, the date of- the decree of the.Orphans’ Court, giving him the' land, down to the date of the sheriff’s sale, on the 5th of June, 1S30 — a period of more than seven years. And although the land itself was taken from him or his assignee, yet the rents, issues and profits received during this time, still remain with .him; nor is there any one other-than those of the heirs of the intestate, who have not released, who can lay claim to these profits.- Justice and equity would seem to require that he should account and pay over to the plain-, tiff at least one equal ninth part of the two-thirds of the whole rents, issues and profits of the land from the^date of the decree of the Orphans’ Court, to the making of the sheriff’s deed. The defendant is bound absolutely, and unconditionally by his recognizance to pay to the plaintiff her proportion of the valuation money of the lan'd; but upon principles of equity and good conscience he prays to be relieved from it. Now no principle is better- settled than that he who claims equity must do it himself. Hence, I say that he has no right to be relieved from the burden of his recognizance, but' upon his doing equity to the plaintiff, which requires that he should at least pay over to her one-nirffh of the two-thirds of the wholeprofits, as before mentioned. I say two-thirds of the nett profits, because the defendant will,- if he has not already, have to pay to the widow of the intestate one-third of the interest of' the appraisement of the land from the date of his recognizance to the sheriff’s sale, which precludes the plaintiffs from claiming more than their one-ninth of the two-thirds of the whole profits. The annual value of the nett profits of the land is not given in the case stated for the opinion of the court; aqd although this court must reverse the judgment of the court below, which was entered for the defendant; yet, as the value of the profits is unknown, it cannot render a judgment in favor of the plaintiffs for the sum which they are entitled to recoyer. This court is not willing upon mere conjecture to say that the interest upon the valuation money may be considered as a fair value of the profits of the land. They may be more or may be less, and as a state of things has arisen altogether different from that which wag [339]*339in the contemplation of the parties 'at the time of giving the recognizance, it is thought that the real value of the nett profits ought t0 be the measure for ascertaining the sum that the plaintiffs are entitled to recover. The plaintiffs’ counsel claimed more; and alleged as a reason for doing so, that it was owing to the default of the defendant, in not applying the money mentioned in the recognizance to the discharge of the judgments obtained against the estate of 'the intestate, that the land was taken from him by the sheriff’s sale. This reason does not appear to be well founded.
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The opinion of the court was delivered by
KenNedy, J.
—The first question which presents itself in this Case is, was the execution of the release of Catharine, one of the plaintiffs dum sola, and under the age of twenty-one years, a discharge of the defendant from his liability to her on the recognizance upon which the scire facias has been sued out? It is proper to note here that John Knisely, who was the guardian of this plaintiff at that time, was also surety of the defendant in the recognizance* Under this arrangement the land was not only bound as security to her for her proportion of the valuation money, but the defendant and his surety were both personally bound to her. By the' subsequent agreement in pursuance of which the release was given, it is manifest that her security for, her proportion of the appraisement of the land was materially lessened, and therefore it could not be for her benefit. Infants are only capable of making contracts for necessaries, such as are considered in law clearly for their advantage, [337]*337or of doing those things voluntarily which by law they might and could be compelled to perform. These, when fairly made and done, will be valid and binding, but generally all contracts of a different or opposite character, will not be regarded as having any binding force or authority whatever upon minors. I therefore consider her execution and delivery of the release no bar to her claim upon the recognizance. It appears to be executed by John Knisely; but it does not appear from the manner in which he set his name and seal to it, that he intended to execute it as her guardian; nor has he thereby declared for whom he intended to execute it. He, however, was guardian also at that time for Joseph Hantz, the brother of Catharine the plaintiff, and equally interested with her in the recognizance, and his name is not to the agreement, may be that he intended to execute for him. Be that, as it may, I think, under the particular circumstances of this case, it was not competent for him as the guardian of Catharine, to bind her or bar her of her right under this recognizance by executing that release. He was directly interested, in extinguishing the recognizance; he was himself bound by it and answerable to Catharine his ward for whatever in any event might be coming to her on it. The law will therefore view any act of his going to discharge this recognizance without an actual receipt of the-money due upon it, with extreme jealousy. In addition to this, it would have been a diminution of- the security as well as an attempt to release himself, and a direct violation and abuse of his trust and authority as her guardian, and therefore invalid, and not binding upon her.
It remains in the next place to be considered, whether the land, which formed the consideration for entering into the recognizance, being taken away from the defendant or his assigns by a sheriff’s sale, under judgments against the administrators of the intestate for debts owing by him at the time of his decease, ought to exonerate him from all obligation under it. Before, and at the time that the defendant elected in the Orphans’ Court to take this land at its appraisement, and entered into the recognizance, he, the plaintiff, Catharine and their brothers and sisters, were the unquestionable proprietors of it in fee simple; holding it subject to the payment of the debts of the intestate, (their ancestor) from whom it descend ed to them. Each of them was the owner of an equal undivided ninth part, subject to the widow’s claim of dower. The nature and extent of their respective rights in the land, must have been known and understood by all of them. The defendant was one of the administrators of the intestate, and must be presumed to have known at least as much, if not more, than the other heirs. The plaintiff had just the same right to participate in the enjoyment of this estate that the defendant had, and he could not have obtained the pos[338]*338session of her right in it, and continued to enjoy it for any le..p i of time, without allowing, or at least a'greeingto allow her a suitable equivalent for it. He obtained á night to, and took possession of it, under a decree of the Orphans’ Court upon his entering into the recognizance, upon w.hich this suit is founded, binding himself to pay to the plaintiff a fair price for her interest in the land. Unr. der this decree and stipulation of' hisy he and others under him, continued to "receive and enjoy exclusively all the rents, issues and profits that could be derived from the actual possession and occupation of this land from the l-3th of April, 1823, the date of- the decree of the.Orphans’ Court, giving him the' land, down to the date of the sheriff’s sale, on the 5th of June, 1S30 — a period of more than seven years. And although the land itself was taken from him or his assignee, yet the rents, issues and profits received during this time, still remain with .him; nor is there any one other-than those of the heirs of the intestate, who have not released, who can lay claim to these profits.- Justice and equity would seem to require that he should account and pay over to the plain-, tiff at least one equal ninth part of the two-thirds of the whole rents, issues and profits of the land from the^date of the decree of the Orphans’ Court, to the making of the sheriff’s deed. The defendant is bound absolutely, and unconditionally by his recognizance to pay to the plaintiff her proportion of the valuation money of the lan'd; but upon principles of equity and good conscience he prays to be relieved from it. Now no principle is better- settled than that he who claims equity must do it himself. Hence, I say that he has no right to be relieved from the burden of his recognizance, but' upon his doing equity to the plaintiff, which requires that he should at least pay over to her one-nirffh of the two-thirds of the wholeprofits, as before mentioned. I say two-thirds of the nett profits, because the defendant will,- if he has not already, have to pay to the widow of the intestate one-third of the interest of' the appraisement of the land from the date of his recognizance to the sheriff’s sale, which precludes the plaintiffs from claiming more than their one-ninth of the two-thirds of the whole profits. The annual value of the nett profits of the land is not given in the case stated for the opinion of the court; aqd although this court must reverse the judgment of the court below, which was entered for the defendant; yet, as the value of the profits is unknown, it cannot render a judgment in favor of the plaintiffs for the sum which they are entitled to recoyer. This court is not willing upon mere conjecture to say that the interest upon the valuation money may be considered as a fair value of the profits of the land. They may be more or may be less, and as a state of things has arisen altogether different from that which wag [339]*339in the contemplation of the parties 'at the time of giving the recognizance, it is thought that the real value of the nett profits ought t0 be the measure for ascertaining the sum that the plaintiffs are entitled to recover. The plaintiffs’ counsel claimed more; and alleged as a reason for doing so, that it was owing to the default of the defendant, in not applying the money mentioned in the recognizance to the discharge of the judgments obtained against the estate of 'the intestate, that the land was taken from him by the sheriff’s sale. This reason does not appear to be well founded. He was one of the administrators, and he and his co-administrator had but @1580 of the assets of the estate in their hands, and this sum, added to all that he was bound to pay by virtue of his recognizance, would still have fallen short greatly of a sum sufficient to pay the judgments, which amounted to more than eight thousand two hundred dollars. There is no equity in saying that he ought to have paid towards discharging these judgments the whole amount of the yaluation of the land taken by him; nor yet of the recognizance, but even all that would have been quite insufficient; because the other heirs, or some of them, had taken other lands, being part of the intestate’s estate, and were bound to contribute their proportion towards paying these judgments. They did not even offer to do so, nor had the defendant the power of compelling them. The defendant was certainly not bound to pay these judgments out of his own private funds, further than his own proportion. Pie had nothing like funds sufficient, of the other heirs, in his hands to pay their respective proportions of these debts, and they neglected to furnish what was wanting. It was a matter in which they were all equally interested and boqnd each to contribute his proportion. All seem to have been equally negligent, and the loss if any ought therefore to be borne equally.
It is unnecessary, and I think improper, in this suit, to take into consideration, and to give to the plaintiffs their proportion of the on.e thousand and twenty dollars, the surplus money which remained in the hands of .the sheriff of the_moneys arising from the sale of the real estate, and was paid upon the order of the administrators of the intestate. The plaintiffs have their remedy in the Orphans’ Court for this money, and can compel, the administrators to charge themselves with and pay it over.
■ The judgment of the court below is reversed, and for the purpose of having the case settled according to the principles now laid flown by this court, a venire facias is awarded.
Judgment reversed, and venire facias awarded.