The court on the-day of-proceeded to give their opinions seriatim in this case.
Shippen, C. J.This is an action on the case brought for money had and received by the defendants to the use of the plaintiff. The defendants acknowledge the receipt of the money, but allege it was money they had a right to receive to their own use.
In arguing this case, large ground has been taken ; old family settlements, wills, and ancient as well as more recent agreements have ■been resorted to, all, I presume, to enable the court to make a proper *565construction of the last agreement made on the 14th March 1787, on which the whole question depends.
By the articles of agreement executed the 8 th of May 1732, between John, Thomas and Richard Penn, the three sons and devisees of of the first proprietor^ William Penn, it was the evident intention of the parties to preserve their estates in the province to the heirs male of the bodies of the parties respectively, and at the same time to obviate the mischiefs which might arise from such a restriction of the estate, as should prevent the alienation and improvement of the lands. For the purpose of continuing the estate in the family, it was covenanted between them, that neither of the brothers should by will or otherwise, dispose of his share or estate in the province to any child, except to his eldest son in tail male, with remainder to his second, third and other sons, in tail male successively. And for the purpose of facilitating alienations to purchasers, in order to improve the lands, it was provided, that in case of the death of either of the parties, leaving issue under twenty-one years of age, the survivors and survivor should sell and convey to such purchasers in fee simple.
John Penn, the eldest of the three brothers, being entitled to one moiety of the province, did by his last will and testament, dated the 24th of October 1746, devise the same to his brother Thomas for life, remainder to trustees to support contingent remainders, remainder to the first son of Thomas in tail male, remainder to his brother Richard, and to his first, second and third sons in tail, with power to the several possessors for the time being, to sell the lands in parcels, in fee simple. By thus devising the estate to his brother Thomas for life only, John did not depart from the terms of the article of 1732, which confined the disposition in tail to a child only, and John died without any child ; on the contrary, he conformed strictly to the spirit of that agreement, by expressly giving an estate tail to Thomas’s eldest son. John likewise gives the arrears of quit rent and purchase money due at his decease to his brother Thomas, his executors, administrators and assigns.
Somo time after the death of John, on the 31st of January 1750, new articles of agreeement were executed between the surviving brothers, Thomas and Richard, reciting the articles of 1732, and agreeing that the like powers and authorities given by the will of John Penn, to the possessor of the time being, with respect to his moiety, should be likewise given to the possessors of their quarter parts respectively. This agreement ratifies and confirms the agreement of 1732, except in such parts as are thereby altered expressly. By these articles it is *566provided, that all fines and purchase moneys shall, as to the respective quarter parts of the province, belong to the possessor for the time being of each respective quarter part, as his own proper money.
On the 21st March 1750, Richard Penn, by his will, devises his fourth part of the province to his eldest son for his life, remainder to the first and other sons of John in tail male, with remainder to his son Richard and his sons in like manner; and declares, that although the rents, quit rents and purchase money growing due in the time of each owner of his own quarter part of the province, may in strictness be considered as due to and part of the personal estate of such owner at his decease, yet to avoid confusion, his will was that all such rents and purchase money due in his the testator’s life-time, and not collected in at the next quarter day after his decease, should go with the province to the next person in remainder to whom he had limited his fourth part of the province.
Thus John Penn, the eldest son of Thomas, after the death of his father, held one moiety of the province as tenant in tail under the will of his uncle John Penn, and one fourth under his father Thomas, likewise in tail, by virtue of Thomas’s 'settlement on his marriage of the 15th August 1751, referred to in his will of 1771. So that the only infraction of the articles of 1782, attempted to be made with regard to the vesting estates tail in the immediate descendants of the three brothers, was made by Richard Penn, in devising an estate for life to his son John.
As to the arrears of quit rent and purchase money, John the elder had devised the whole to his brother Thomas, and by the articles of 81st January 1750, Thomas, and Richard agree, that all quit rents in arrear should go with the inheritance ; but that all fines and purchase moneys of their respective quarter parts should belong to the possessor of such quarter ,part for the time being, as his own proper money. But by the wills both of Thomas and Richard, it appears they forsaw that infinate confusion in the accounts of the receiver general would ensue, from not distinguishing between such rents and purchase money, as should be paid in during the respective lives of the possessors, and those, which though due, should not be.paid into the receiver general’s office, within three months after the death of each possessor ; they therefore provide by their wills, that though they consider the whole as personal estate, and subject to their disposal as such, yet they direct that such moneys as should appear by the receiver general’s accounts not to have been paid within three months after the *567death of each possessor should go to the next possessor. And this they recommended to their successors as a mode proper to be pursued by them. It was certainly a prudent provision, but what they seemed to think was not in their power to enforce in any other way than by a recommendation.
But the propriety and necessity of pursuing this mode was in a great measure rendered nugatory, by the great subsequent event that followed, during the continuance of the revolutionary war, and by the act of assembly of 1779, which vested almost the whole proprietary estate in the commonwealth of Pennsylvania. By this act all the quit rents were abolished; no part of the ungranted and uulocated lands was left the property of the proprietaries ; all that 'remained to tho family, wore such reserved lands and manors as had been surveyed for them, in lieu of their tenths reserved under the concessions made with the first purchasers by their ancestor William Penn the founder of the province, together with a few tracts of land which they had purchased of private men, for the accomodation of some of tho country towns. The infinite confusion, therefore, in the land office accounts, which Thomas and Richard Penn had been so anxious to guard against, no longer existed ; and tho reason and necessity of their prudent recommendation to their successors entirely ceased.
The legislature of Pennsylvania having vested the proprietary estate in the commonwealth, thought fit to make a grant to the family of the sum of 180,0007. sterling, to bo paid to thorn according to their just equitable rights, to bo thereafter ascertained, agreeably to justice and equity.
Under this new order of things, it seemed prudent and proper for the several branches of the Penn family, to come to some amicable settlement of their rights. This was accordingly done, and no conflicting claims remain, but the subject of tho present action.
The great question is, what is the true construction of the articles of 1787, with respect to the produce of the sales of land made by John Penn in his life-time, after the 29th November 1779 ?
In considering this case, I shall first take notice of tho respective rights of the parties, when they entered into the agreement.
Secondly, What were their probable inducements for entering into it.
And thirdly, What is the effect and true construction of the article ?
1. The respective rights of the contracting parties stood thus: *568John, as the then present possessor of his father’s one fourth part of the lands, whether as tenant in tail under former settlements, or tenant for life under his father’s will, had a power to sell in fee simple, the unlocated lauds in the province. Whether under this general power, he had a right to sell the manors and reserved lands, being the private and particular estate of. the proprietaries, and distinguished as such in the will of Richard Penn, seems to have been made a question in the family; and therefore, a conveyance was executed on the 14th May 1774, by a tripartite, deed, between Lynford Lardner, Richard Peters and Richard Hockley, the American executors of Richard Penn, having a power by Richard Penn’s will to sell these manors and reserved lands, of the one part; Richard Penn the plaintiff, of the second part; and his brother John Penn of the third part; wherein these executors and Richard Penn the plaintiff, convey the manors and reserved lands to John Penn, to be held by him in the same manner as he held the other lands in the province. It seems therefore to have been the idea of all the parties, that John either under former agreements and wills, or under this deed of 1774, had a power to sell the reserved lands, as fully and effectually as he might have sold the other lands.
The rights of Richard Penn the younger, were derived to him as next in remainder after the death of his brother without issue, with all the appendages and powers annexed thereto, by the settlements an'd wills. He had a right to succeed to the enjoyment of, and then to sell all such of the manors and reserved lands as should not be sold by John in his life-time ; but he had no right to receive any money arising from sales made during the life of John.
2. What were then the proposed benefits arising to the parties, and what were their probable views and inducements for entering into this agreement ?
The two brothers and their families resided then in different countries, John Penn in America, and Richard in England. It was probably the wish of both to close their family concerns in this country as soon as possible. The only remaining estate consisted in manors and reserved lands, which though always conveyed before the resolution under the same solemnities with the other lands, (I mean by warrants, surveys and patents under the great seal) yet as to the price they were differently circumstanced. For the unlocated lands there was a stated price, from. time to time ascertained and promulged to the people. But the price of reserved land was always settled by special agreement between the proprietaries and the several persons who offered to purchase, and was always considerably higher than the other lands. Since the revolution; they were conveyed to the pm-*569chasers by common deeds of conveyance from John Penn, jnn. and John Penn the then proprietors, and bonds and mortgages given for securing the payment of the purchase money to them, in their individual characters. John Penn the testator, being on the spot, could always sell for the best price. The two brothers were equally healthy men, with no groat difference in their ages. Richard, although the youngest and next in remainder, might possibly not survive his brother, and in that case would himself have received no benefit from the estate. By entering into this agreement, Richard was regularly to receive one-third of the proceeds of the sales, and might have thought the present use of the money, and the power of equalizing it among his children, of greater importance than the chance of survivorship, or the eventual accession of a future larger estate to his eldest son. Whether he had a right to bind such eldest son by such an agreement, is not now the question, as between the present parties in the present suit. He had certainly a right to bind himself.
Another inducement to Richard might arise, and most probably did arise, from an apprehension that his brother John, having a power to sell, might during his life, dispose of all the reserved lands, in which case nothing would be left to him to enjoy after the death of John, whereas in consequence of this agreement, and of John’s refraining from making hasty sales, a considerable portion of those lands are left to bo disposed of by Richard.
The substance of the agreement executed on 14th March 1787, is as follows : — It recites the act of assembly of 27th November 1779, vesting the proprietary estate in the commonwealth of Pennsylvania, and making a grant of 130,000/. sterling, to the devises and legatees of Thomas and Richard Penn, and to the widow and relict of Thomas Penn, in such proportions as should thereafter be deemed equitable and just by the legislature. It then suggests, that it is reasonable and proper, that after so great an alteration in the affairs and estate of the proprietary family, that the money granted by the legislature should be settled and proportioned in an equitable and conscientious manner, as far as concerns the parties to that agreement. And it is then covenanted, that all that part and share of the 130,000/. directed to be paid to the devisees or legatees of Richard Penn, which has been, or should be paid during the natural life of John Penn, should be received by the said John Penn, and that he should pay over one third part thereof to the said Richard Penn, and his representatives from time to time, as often as he should receive the same. Then follows the convenant immediately applicable to the present case, in substance as follows :
*570—That all the moneys arising from the sales of any such lands, as were or are the property and estate of the heirs or devisees of the said Richard Penn, deceased, roriginally made not before, but since the 27th November 1779, or which shall hereafter be madefy the said John Penn during his natural life, shall, be received by the said John Penn, and that he John Penn, shall pay over one third part thereof to the said Richard Penn, and his representatives, from time to time,-as often as he shall receive the same. Then follows a provision and covenant, that nothing therein contained shall prevent or disable the said John Penn from exercising the powers with which he is vested, under former agreements and wills, so far as to grant and dispose of any part, or parts of the lands aforesaid, in order that the same may be reconveyed, two thirdparts thereof to the said JohnPenn and his heirs, and the other third part of the same to the said Richard Penn and his heirs, in fee simple, reserving thereupon some quit rent.
8. What is the true construction of this article ? It had two objects, the ascertaining their respective shares of the legislative grant of money ; and secondly, a division of the produce of the sales of land made, and to be made by John.
As to grant of a fourth part of 130,00Qi. by the legislature, it makes no part of the present question, having, I presume, been all paid to John in his life-time, either in money or certificates, and a third part paid over by him to Richard. But it may be necessary to consider this clause, as it may tend to assist in the construction to the other. The parties both knew, that this money was to be paid at different times by instalments, and John’s rights to two thirds is expressly confined to such payments as should be actually made during his natural life. If therefore, any instalments had been left unpaid at the time of John’s death, they would have been the actual representatives of Richard the father, at the time of the payment of such instalments.
The clause relating to the lands is differentely worded. It directs, that for the lands to be sold by John during his natural life, he shall receive the whole money, and pay one third thereof to Richard. If it had been meant to be a provision similar to the former clause, it would probably have been otherwise expressed. It would have run, “for the lands sold and paid for, during his natural life but the words natural life are expressly confined to the sales, and not to the money to be received. But supposing the expression to be equivocal, a strong argument arises from the subsequent clause, to show that it was meant John should *571have the absolute property in two-thirds of the money, whether it was paid during his life or after his death. The clause I mean, is inserted to enable John to make use of his general power to sell lands, for the purpose of having the same reconveyed, two-third parts thereof to the use of John Penn and his heirs, and the one-third part thereof to the use of Eichard Penn and his heirs, in fee. Can it be conceived, that in case the land should have been conveyed, and reconveyed in pursuance of this latter clause, John should confessedly have the absolute property in fee simple, in two-thirds of the whole of the reconveyed lands, and yet the meaning be, that for such parts of the land as he should sell in the ordinary way to strangers, he should not have the absolute property in the money for which the land should be sold, but that his right to it should depend on the precarious event of the time when it should be paid for ?
But it is objected on the part of the plaintiff, that by the words of tho article, the whole money was to be received by .John Penn, without adding tho words “ executors or administrators,” whereas the one third part thereof directed to be paid over to Eichard Penn is followed by the words “ and his representatives ; from whence it is inferred, that it was the meaning of tho parties, that John’s representatives were to receive nothing. To account for this omission, if it bo one, it will be necessary to look a little further back. By the family agreements, particularly by the articles executed on tho 31st January 1750, between Thomas and Richard Penn, it is expressly stipulated, that although the arrears of quit routs should descend and go with the inheritance, yet as to the fines and purchase moneys, they should belong to the possessor for the time being, as his own proper money. Under this idea it was probably that Thomas and Richard Penn in their several wills, consider the money due to them at the time of their respective deaths, arising from the sales of lands in their lives-times, as part of their proper and distinct personal estate. If therefore John Penn, as one of the proprietaries, was considered by the contracting parties in 1787, as entitled in the same manner to the produce of the sales made in his time, as his own proper money, it might have been thought useless to subjoin the words ‘‘ executors and administrators,” whereas in Richard’s case, if he should die before John, it might be thought necessary to subjoin the words “ his representatives,” in order that Richard’s children might receive the benefit of the agreement.
But it is said, that by the wills of Richard and Thomas Penn, it is recommended, in order to avoid confusion in the accounts of the land *572office, that such sums as should be paid into the receiver general’s office, after three months from the time of the death of each possessor, should likewise go with the inheritance; and that as John took some valuable property under his father’s will, ijfc was incumbent on him to consider this recommendation as a condition annexed to the bequest. In answer to this, it must be observed, that in the year 1787, the great object of this recommendation had entirely ceased. It was then known to both the contracting parties, that the proprietary office of receiver general had not been for a long time in existence, the whole business of the land office being then transacted in behalf of 'the state, and by the officers appointed by the new government. It is therefore more probable that the parties had an eye to the stipulation of 1750, which directed the purchase money should belong to the last possessor as his own proper money, than to the unadopted and then impracticable recommendation of their father and uncle, that it should go with the inheritance. If so, it is not to be wondered at, that, the executors of John should not have been inserted in the covenant, especially when it is considered that this was not a grant from Richard to John, of what John had no right to before, but as far as it went was a subtraction from John’s existing right.
Another reason may be likewise suggested for this omission. The payments for the general unlocated lands in the province had been made in a very different manner from those made on the purchase of the reserved lands. In the former case, a small part of the purchase money only was generally paid at the commencement of the title: in the case of locations, one dollar only for each tract, the remainder of the purchase money continued unpaid for perhaps many years afterwards, and was indeed never finally discharged till the parties found it necessary to take out their patents of confirmation, when all the arrears were paid up, together with interest from the time of the original settlement. The practice was quite otherwise on sales _of unreserved lands. The whole money was either paid at the time of the sale, or bonds and mortgages were taken in the names of the then existing proprietaries. This being known to the parties when this agreement was executed, and there being then none but reserved lands to be sold ; in which cases the sale and payment, or security went hand in hand together, there might appear no necessity to introduce the word executors at all in the covenant.
Upon the whole matter, no. undue advantage appears to have been taken on either side. The parties made their agreement under a thorough knowledge of their respective rights. No *573great inequality, if any, appears in the contract, especially as John made no settlement on bis wife, which he had a power to do by the several family agreements, and as he might, consistently with the express provisions of the article, if he had suspected such a construction as the present on the part of the plaintiff would have been contended for, have conveyed the whole reserved lands, and taken back a conveyance to himself for two thirds, in fee simple ; his not, doing this shows at least his sense of the agreement.
The question stated in this case is, whether Richard Penn the plaintiff, is entitled to all the purchase money due on sales of land made by John Penn, which were not collected in by tbe quarter day next after the death of John Penn, or only to one third part thereof ? I am of opinion, for the reasons before assigned, that Richard Penn is not entitled to the whole of the purchase money, arising from sales made by John after the 27th November 1779, but only to one third part thereof.
Yeates, J.The agreement of 8th May 1732, made between the then proprietaries of Pennsylvania, stipulates (amongst other things) that neither of the parties shall dispose by will, or otherwise, of his share to any child, except to his eldest son in tail male, with remainder over to his second, third, and other sons in tail male successively, but that during their joint lives, may revoke the agreement by any writing under hand and seal. The agreements of 31st January and 20th March 1750, make no variation herein, in the case of either party having male issue, and expressly confirm the first articles, so far as they are not altered by the subsequent ones ; — they contain the same clause of power of revocation. It would seem, therefore, that the defendant’s testator, under the operation of those family agreements and his father’s will, would be entitled to an equitable estate tail in the lands devised to him. Richard Penn, (the 1st. could not, without the concurrence of his brother Thomas, then living, revoke the former agreement, nor does this appear to have been his intention.
It does not however strike me, to be of any moment in the decision of the present question, whether John Penn the second, was tenant in tail, or for life, and therefore I lay no stress on it. After his father’s death, while in possession, ho had the undoubted power, under the agreement of January 1750, “ notwithstanding his limited estate or interest for life, or in tail, to grant any estate or interest how large soever, of any lands or other hereditaments, on the usual quit rents.” And any question which might arise, as to the *574same Richard’s private and particular rights to manors or reserved lands, or his shares of any manors or reserved lands, is at rest under the deed trifartite of 17th May 1774, and the estate of the same John therein is confirmed.
The American revolution formed an important epoch in the affairs of the late proprietary family. The legislature of the estate declared, by a law passed the 27th November 1779, (1 Dall.. St. Laws 822, § 2,) that “ the claims of the late proprietaries to the whole of the soil contained within the bonds of the royal charter, and the quit rents, and purchase money, upon all the grants of lands within the said limits, cannot longer consist with the safety, liberty and happiness of the good people of this commonwealthand therefore vested the proprietary estates, in the commonwealth, excepting therefrom their private estates, their tenths or manors, and the quit or other rents reserved out of the same. § 8. The freemen of the state, desirious to manifest their liberality, and to prevent the disappointment of sundry marriage settlements, and testamentary dispositions, made a donation of 130,0007. sterling, payable by instalments, to the devisees and legatees of the late proprietaries, and the widow and relict of Thomas Penn, “ in such proportions as should thereafter, by the legislature, be deemed equitable and just, upon a full investigation of their respective claims.” §§ 12, 13, 14.
On the part of the late proprietary family, we may fairly presume, that tbe payment of this sum of money was considered in the light of a mere act of justice, and that it came in lieu of the estates they had been divested of. Of tbjs sum, the devisees of Richard Penn (the 1st) were entitled equitably and justly to one fourth part, but their respective proportions were not fixed and ascertained by the act. In the language of the sons, as contained in their articles of 14th March 1787, “ it was resoriable and proper, that after so great an alteration in the affairs and estate of the proprietary family, the money should be settled and proportioned in an equitable and conscientious manner, as far as they were concerned ; and therefore they make an amicable division thereof, well knowing that in case of disagreement, the will of the legislature must be the dernier resort.
If this 130,0007. was considered as an equivalent for the lands of the family, and governed by the limitations and provisions expressed in the different wills and agreements, the payments thereout, according with correspondent sales of the real estate, John Penn (the 2d) was the immediate devisee in tail or for life, with power of disposition, of one fourth part thereof, and his brother Richard was the next remainder man.
*575The periods o£ payment had commenced, but the life of the elder son advanced in years, was held by a tenure highly uncertain. He had been married, but had no prospect of issue. On the other hand, he might survive the ultimate instalment of the 180,000/. and the sales of ail the proprietary private estate and manors ; and his brother might stand in immediate need of cash. Richard was not much younger, nor more healthy than John. Under these circumstances, articles were concluded on between the brothers, that the proportion of the 130,000/. which had been or should be paid during the natural life of the said John Penn, to the devisees and legatees of his father, should he received by him, and that he should pay over one third part thereof to his brother Richard and his representatives, from time to time, as often as he should receive the same. And that the moneys arising frpm the sale of any of his father’s lands, made not before, but since the 27th November 1779, or which should thereafter be made by the same John during his natural life, should be received by him, and that he should pay over one third part thereof to his brother Richard and his representatives from time to time, as often as he should receive the same. With a particular provision, that the defendant’s testator might exercise the powers with which ho was vested, under former agreements and wills, so far as to grant and dispose of any part of the lands, in order that the same might be reconveyed; two third parts thereof to the said John and his heirs, and the other third part thereof to his brother Richard and his heirs, in fee simple, reserving thereupon some quit rent.
If any part of the 130,000/. remained unpaid in the life of the defendant’s testator, it is obvious to me, that the plaintiff would be‘entitled to the full one fourth part thereof; as their mutual agreements restricted the two third parts to the former, to payments made during his natural life.
As to lands sold before 27th November 1779, the articles are expressly declared not to relate thereto, and consequently, the will of Richard Penn (tho 1st,) and the family agreements must regulate the same. If the moneys have not been collected in by the quarter day next after the decease of John, they go over to the plaintiff his brother, provided they are collected in his life-time, or the quarter day next thereafter.
The question remaining is, whether the plaintiff is entitled to the whole, or only one third part of the monies, due on the sales of lands made by John Penn, after the 27th November 1779, uncollected at the quarter day next after his decease ?
It is clear, that the private estate and manors of the Penn family, re*576mained unaffected by the act of the legislature already mentioned ; and also that the children of the plaintiff can have no well grounded claim-to monies received in their father’s life-time. The pretensions of the heir must rest on the possession of the share of his ancestor. The possessors of the proprietary estate for the time being, were vested with the power of selling ; and if the moneys produced by such sales were paid in, either in the lives of the defendant’s testator, or of the plaintiff, or at the quarter days next following their deaths, the issue of the latter could not be entitled thereto. As to those sums therefore, the brothers John and Richard were warranted to make any equitable, arrangements between themselves, to meet their own convenience.
After fully revolving in my own mind the point submitted to us, under every shape in which it suggested itself, I am of opinion, that the plaintiff is entitled to only one third part of the money due on the sales of lands made by the defendant’s testator, which were not collected in by the quarter day, next after his death. I cannot bring myself to believe, that it is material as to the plaintiff, when such money is received, provided it is during his life. By his agreement, the change of the real into the personal property, vests, as to him, an immediate interest in his brother, with respect to two third parts thereof. This appears to me to be the natural and true meaning of the parties in their agreement, and does no violence either to the legal or grammatical operation of the words. I can see no reciprocity in any other construction.
John relinquishes to Richard one third part of the quarterly sum of 180,000/. though it may be received by him in his life-time. If Richard should die before him, the payment of the one third is to be continued to his representatives ; but should Richard outlive him, the interest of the family of John in the two thirds ceases entirely.
Would there then be any mutuality, that in the event of Richard’s dying first, the payment of one third of the money produced by the sales of lands after the 27th November 1779, by John, should go on to his representatives ; but that in the event of Richard’s surviving John after actual sales made by the latter, the moneys thereafter to be received therefor by the former, should be wholly absorbed in his estate?
The expressions in the articles vary materially, as to the legislative donation, and the moneys arising from the sales of lands. In the former, the proportion due to John, is confined to money which has been, or shall be paid, during his natural life. But not so in the latter ; the sales, and not the payment of the consideration, are confined to *577the life of John. The inequality of the articles taken in a different sense from what I have adopted, is so striking to my mind, that I am induced to believe they were calculated to correct it. No rational ground in the other construction can be traced for the insertion of the proviso in the close of the agreement; this has been ably shown in the argument of the Chief Justice. Every cession would thus be made on the part of John, while nothing is ceded on the part of Richard, to form a contract “ equitable and conscientious. ”
It must be admitted, that both Thomas and Richard Penn, by their wills, in pursuance of their agreement of January 1750, provide, that moneys uncollected on sales, as well as quit-rents, should go over to the different remainder men in possession. And it is objected, that while the defendant’s testator has received the rents, &c. due to his father in his life-time, he shall also he bound to the same measure in the case of his brother. A devisee claiming under a will, shall not disappoint the intention of the testator. The authorities cited fully prove this point. Abstracted from the last agreement, they would certainly have controlled the present question. As this case is circumstanced, and as between the parties before the court, they do not appear to me to be applicable.
No one in this instance can complain of the infraction of the will of Richard Penn the first, except the plaintiff; and it lies not in his mouth to complain of his own act, made on a perfect knowledge of his rights after due deliberation, with attention to his immediate interests. He was competent to make an agreement with his brother, so far merely as it concerned themselves ; and having fairly done so, the maxim volenti non fit injuria holds in its full extent. Plowd. 501. This appears to me to be a satisfactory answer to the cases relied on by the plaintiff’s counsel.
On the whole, I eoncur with the Chief Justice, that judgment be rendered for the defendants.
Smith, J.I have considered this case, and having seem the Chief Justice’s opinion in the vacation, I subscribe fully thereto I cannot add to his argument without doing it an injury.
Judgment for the defendants.
During tile vacation, Jared Ingersoll, esq. resigned the office of attorney general, and was appointed by the president of the United States attorney of the United States for the district of Pennsylvania.
Joseph B. McKean, esq. was appointed his successor, as attorney general of Pennsylvania.