#### JOHN M. CLOUD et. al. *vs.*JOSEPH MARTIN, Adm’r of JOHN MARTIN.

Where a testator directed that his infant grand-son and grand-daughters, who were orphans with but little property, should “ be raised and taken care of” by their uncle; that the grand-son should “ have, at the age of twenty-one, a small negro boy, and a horse and saddle worth $75; and be educated so as to understand and know the English, Latin and Greek languages; and after this far learned, to be got to the study of the law, if capacity will allow of it;” and that the girls should “be educated so as to read and write, *it was held,*that the direction in the will created a charge upon the testator’s estate for the support of the grand-son during his minority, and for his education at the common grammar schools or academies of the country, but not for sending him to College, or supporting him during the time he might be studying the law, or any other profession; and that the testator did not mean to maintain his grand-daughters absolutely until full age or marriage, but intended to provide for the expenses of their tuition, board and clothing up to the age at which young women in the same station are deemed capable of providing for themselves, or of rendering such services in the paternal household as will compensate for their maintenance.

The plaintiffs were a grand-son and two gfand-danghters of John Martin, who made his will and died in 1822. Their *275father died intestate, leaving very little property, in 1814, when they were quite young. The grand-father, by his will, desired “ that my three graud-children, John Martin Cloud,' Mary Ann Cloud and Jeroam Elizabeth Cloud be raised and taken care of at the direction and care of my son. James Martin; and the two girls be educated so as to read and write, and Martin, as hereafter mentioned in this will. I also will that John M. Cloud have, at the age of twenty-one years, which I now will and bequeath to him, a small negro boy by the name of Saunders; also one horse and saddle, worth $75; and be educated so as to understand and know the English, Latin and Greek languages; and after this far learned, to be got to the study of the law, if capacity will allow of it.” The testator did not nominate an executor; and his son James; who is mentioned in the recited clause of the will, and another son, Joseph, the present defendant, took out letters of administration with the will annexed; and said James was also appointed the guardian of the three plaintiffs respectively. James Martin chiefly acted in the administration, and died insolvent, in 1833; and there was no personal representative of him. For a time, the said James'sent the plaintiffs to school; but he then resigned the guardianship, and their mother became the guardian of the plaintiffs, and received from the administrators some inconsiderable suras for the support and education of the plaintiffs. The mother then resigned, and another guardian was appointed for John M. Cloud; to whom it does not appear that any funds were paid, though he sent his ward to a grammar school, with the approbation of James Martin.

The bill was filed by the three grand-children against Joseph Martin, the surviving administrator, to have the value of the bequests in their favour ascertained, and also the sums thát have been applied for their benefit; and after deducting the same, to have the residue, whatever it may be, raised out of the estate and paid to them.

The bill did not charge that there was any deficiency in the education of the female plaintiffs; and, indeed, their mother proved that they were instructed according to the directions in the will. Rut, the bill alleged that they were not *276sufficiently provided with clothing; and that neither for that their schooling was payment made by the administrators, or either oí them.

The bill charged, in respect to the other plaintiff, John M., wag jmperfectly educated, inasmuch as he was not sent to College at all, nor to good grammar schools, nor for a sufficient length .of time; that being desirous of pursuing the liberal profession, designated by his grand-father, he went to school upon his own credit, and obtained a defective knowledge of Latin and Greek, and also studied law; that he owed therefor considerable sums of money, which ought to be reimbursed to him out oí his grand father’s estate; and also a reasonable sum for board and clothing, during the periods of pursuing his studies.

The answer insisted that the plaintiffs were sufficiently educated; and if not, that the superintendence of their education was a personal trust confided by the testator to James Martin, for the violation of which the defendant ought not to be liable. The answer also stated that James Martin came to an account with the persons entitled under his father’s will, and had credit for sums laid out for the plaintiffs, and yet had a balance in his hands of $800, which was applicable to the uses of the plaintiffs, and had never been accounted for to the other persons entitled; and, thereupon, insisted that a proper fund was thus in the proper hands for fhe benefit of the plaintiffs; and that, if it had been lost by James Martin’s insolvency, the estate' could not be charged with it a second time.

*Boyden*and *Badger*for the plaintiffs.

*J T. Morehead*for the defendant.

Ruffin, Chief Justice,

having stated the case as above, proceeded as follows: We had occasion, in an action at law, some years ago, to intimate some c; the opinions we had upon this will. *Cloud*v. Martin, 1 Dev. and Bat. 397. Upon a re-perusal of it, we all think as we then did, as to the extent of the benefit intended for the grand-son.. The education to be provided from the estate, was that which would be received during the period the children were to be “ raised and *277taken care of” by their uncle; which, it seems to us, must be while they were'infants and. going to school. The did not mean that James Martin should control the grand-son. in the choice of a profession; and, of course, not that his maintenance, while he was studying a profession, should be paid out of his estate. The testator could not have intended to make his bounty in this respect dependent upon his grandson’s being fit for, or choosing the profession of the law only. It would not be reasonable to suppose so; and it seems quite clear that there would be no pretence for claiming his support out of the estate, while acquiring any other profession or art. It follows, that it is to be the same, should he study law. The reason why the allowance was not continued by the tes'tator was, that at full age the grand-son would have the entire control of the capital of his own small properly; and its accumulations during his minority, as well as the specific legacies given in the will; which together, would be an adequate provision for this purpose.

From the terms employed by the testator, we conclude also, that it was not his purpose to have this young man sent to College at the expense of his estate. - If it had been, there would not have been the restriction to the three languages, which constitute the rudimental education of grammar schools or the academies of the country. At institutions of that character, it appears, by the evidence, the testator had placed some of his own sons, and that one of them was then sent to college. Though himself illiterate, the testator Was aware, from experience, of the difference between those sem. inaries of learning. We have no doubt, therefore, that he designed to have this youth bred at such grammar schools in his vicinity as his own sons had been brought up in, tinder his own directions; and that his clothing should be of that plain and cheap kind which is made in country families; such as he provided for his own sons, while at those schools. The expenses of such clothing and his board, at school, during a reasonable period for the acquisition of the specified degree of knowledge, we think, is charged on the testator’s estate. What, education this person acquired, how long he was at school* whether the schools were proper, how much longer *278or to what other schools, if any, he ought to have been sent, are qnest-ions on which the case must go before themas-ter, if either of the parties wish an enquiry upon them. So it must be referred to the master, to ascertain what were the expenses of this plaintiff’s board, clothing and tuition, while at school, or what would be a reasonable sum therefor, according to the particulars already mentioned; and what proportion of such expense was defrayed by *James*Martin, or out of the testator’s effects; and what proportion remains still unpaid.

íor"im-e^a balance of ryetfaté'Tñ am/waíeU and become insolvent, ■the Joss *279,, those enti-residue,and benefit a, parncular was di-

*278The Court is also of opinion, that the testator did not mean to maintain his grand'-daughters absolutely until full age or marriage: nor to fake them from under their maternal roof and government. He meant that the expenses of their tuition should be borne by his property, and such plain apparel found during the time as was usual for children in the conn, try, and also their board, if it became necessary that they should be sent from home to go to school, or to a proper school. Of course, this allowance cannot be extended beyond the age at which *yoimg women*in the same station Of life with these are deemed capable of providing for them_ selves, or of rendering such services in the paternal house, hold as will compensate' for their maintenance. What shall be a proper allowance in this case, also, is a question which must go to the master; to whom the parties can give evidence directed to the point; and, likewise, what sum has been paid, and ought yet to be paid, on that account.

At present, it is not necessary the Court should say any thing on that part of the defence set up, which is founded on the supposition that an ample fund was raised and retained by James Martin; and, therefore, that the estate ought not to be burdened again. What *may be the law,*ifthefactshould so turn out, it may be material hereafter to inquire. But, it d.°es not aPPSar¡ as yet, that any fund was set apart for this purpose; but only that James Martin, as administrator, had a balance of the residuary estate in his hands, which, it is said, wasted. Now, admitting it to have been so, that loss ought not to fall on these persons more than on the residuary *.*^ *J*legatees; for it was not set apart or dedicated to this purpose *279in particular, or in any manner secured therefor. The loss must, therefore, fall on those entitled to the residue.

As the defendant does not admit assets of the testator in his hands to answer this demand, and denies his liability for the *devastauit*of James Martin, of course, an account be taken of the estate of thé testator that was, at his death, ' . . liable under the will to this charge, and of its tion, so as to shew whether the defendant has, or ought have, of the estate of his testator, any fund to answer the recovery of the plaintiffs.

Per Curiam. Order accordingly.