
    COURT OF APPEALS, JUNl TERM, 1822.
    A. & E. Johns vs. Stoops, et al.
    
    . A B. liylmvrtll tfivecUTl tlmt his three prundsons should be edccttl«(I until 21 years of sure, out ot the ■Jnoftts of his real «■'•tote under the direction of his executors, ami eliar^ed his renl estate with ihv ex-jicnsr of their education. This direction not being complied with th"y filtd their fcill, 16 years afterwards, at ains the devisees m the will, u> recover as «uinpensMtioij fox* the injury (hey had sustained, as jHui'h money as «light, under the j-rovisions of iJie tvili, io have been ?!>P»“d to their cducaton--^aiisstd 1
    Appear from Chancery. On the 26th of April 1792» ¿¡¡exandei\ Baird, by his will, directed that his three grandsons, (two of W'hoíñ were the complainants, and now appellants, the other being de§d,) should be educated out of the profits of his real estate, under the direction of his executors,. until they arrived to the age of 21 years; and he. charged such estate with the expense of their education. This direction not being complied with, the appellants filed their bill on the 12th of January 1808, against the devisees, in the will, to recover as compensation for the injury they had sustained, as much money as ought to have been applied to their education, under the provisions of the will. They alleged, that the devisees had not contributed in any manner to.their education, but that they had hitherto been educated at the sole expense and charge of their own estate, Theypray-. ed that the said real estate be sold, &c. or that the devisees be decreed to pay such sum as should seem reasonable for their education; or that they might have such other and further relief as the nature and circumstances of their case might, require. On coming in of the answers, and the return of testimony taken under commissions, the chancellor, by agreement of the parties, decreed that an account between the parties be taken by the auditor, reserving all equity, &e. The auditor reported a balance due to Jl. Johns oí $6370, with interest on $2875 from the 21st of November 1818; and a balance due to E. Johns of $7205, with interest on $3500 from the same time. The defendants excepted to the auditor’s report on various grounds. The cause was argued by counsel, and submitted.
    
      ICiity, Chancellor, (December term ÍSI 8.) This is a tease of much difficulty, owing to the uncertainty as to the kind of education intended by the testator, and to tile nálure of the testimony. The proper course, after the death of the testator, would have Been to apply to this court to’ ■direct the súms of money to be paid froiii the profits of the.. Teal estate. Supposing (as that was not done,) that the complainants are entitled now to such reasonable sums as should have been raised, with interest, a question will Arise, whether there is sufficient testimony to eiiable the court to ascertain and dctermiiie the ánidunt. I do not, however, recollect any case similar to the present, that is, where the suit was brought after the time for accomplishing the object had elapsed. The prayer of relief in the bill was not carefully made; It should have been for an account éf the profits of the real estate, as well as for the sale thereof to raise the sums due. There is, however, a prayer for general relief. One of the allegations in the bill, of the complainants having been educated at the sole expense and charge of their own estate, is not proved. At least there is no evidence of actual disbursements so as to Support a claim for repayment. The accounts stated by the auditor are founded on the testimony of Doctor James Scanlan, who estimates the expense of tuition and boarding át £§250 for each, for the three years next ensuing the death ¡of A. Baird. This would be a very moderate estimate if it could be shown that the testator designed a liberal or professional education, or that the board or maintenance ¡of his grandsons was intended to be charged on his real estate. This does not appear, and the presumption is rebutted by his declarations, as proved by W. Bordley, that he had already done a great deal, that that was his will, and lie could do no more; and also by the unequal burthen which would have beén thrown on Ids other devisees. The smaller sums stated by the auditor fur consideration would appear more reasonable, but the testimony of Doctor Scan,lan would not bear that construction. The argument turned chiefly <m the question, whether the complainants were entitled to any sum, moi'c than on the amount, although exceptions had been filed to the auditor’s report. And it was not shown that the'objection made by him of the want of testimony from which the sum due could be apportioned to the-defendants, was unfounded or unimportant Although justice may require that the complainants should receive an equivalent for the benefits which was intended by the testator, I cannot, on the present proceedings, make a satisfactory decree in their favour. Decreed, that the bill be dismissed, but without costs. ' Tl.ie complainants appealed to this court.
    Tile cause wás argued at Juné term Í821, before Buchanan, Earle, Johnson, Martin, and Dorsey, J.
    
      Stephen, for the appellants;
    contended, that the suit could be sustained. He cited Blair vs. Owles, 1 Munf, 38. Greenwell vsl Greenwell, 5 Ves. 199. Shobe vs, Carr, S Munf. 20; and 2 Brid. Index, 215, pi. 494.
    
      Hinder and Chambers, for the appellees;
    
      Curia adv. vidt¿
    
    At this term
   decree affirmed--  