Lindsay v. Hogg, 41 N.C. 3, 6 Ired. Eq. 3 (1849)

June 1849 · Supreme Court of North Carolina

41 N.C. 3, 6 Ired. Eq. 3

GAVIN H. LINDSAY vs. THOMAS T. HOGG.

A testator, by his last will, directed as follows: “I direct that my nephew, L. be educated at my expense at the Episcopal School in Raleigh ; I mean that all the expenses of the school be paid by my executors. The other expenses not belonging to his education to be paid by his father. In ease, for any reason,he cannot be educated at that School, I direct my executors to pay for his education at any School in this State, and at the University; the School to be designated by his father or mother.’’ Held, that the testator’s estate was not chargeable with the clothes of L. while he lived with his father before he was sent to school; but that it was ehargeable with his board and clothing when sent to school; and that the words, “other expenses, not belonging to his education,” referred to the expenso of nurture, while he was too young to be sent from home and was hoarded and clothed by his father at home, to the pocket money which boys are usually allowed, while at school and at the University, and to the expenses during the vacation.

The ease of Cloud v. Martin, 1 Dev. & Bat. 399, and 2 Dev & Bat. Eq. 274, cited and approved.

Cause removed from the Court of Equity of Guilford County, at the Spring Term 1849.

The bill is filed for the purpose of having a construction put upon a clause in the will of the late Gavin Hogg, The clause is as follows : “ I direct, that my nephew Lindsay be educated at my expense at the Episcopal School in Raleigh: I mean that all the expenses of the school be paid by my executors. The other expenses, not belonging to his education, to be paid by his father. In case, for any reason, he cannot be educated at that school, I direct my executors to pay for his education at any school in this State and at the University; the school to be des* ignated by his father or mother.”

At the death of the testator in 1835, the plaintiff was quite young; and before he was old enough to be sent from home to board, the Episcopal School in Raleigh was discontinued. For several years he was sent to school in Greensboro’, where his father resided ; his father boarded and clothed him, and the defendants paid for his tuition and school books.

In 1840 his father failed, and is now totally insolvent. The bill was filed in 1848. It alleges, that the plaintiff was enabled to continue at school the year before by the kindness of David C. Mebane, who advanced $200 to pay for his board and clothes, and that, if he is kept at school another'year, he will be prepared to enter the University; but he is entirely without means and will not be able to obtain an education, unless the estate of the testator is liable for the expense of his board and clothes, as well as his tuition and books. He insists, that the estate is liable for his board and clothes, and also insists, that some allowance should be made for his board and clothes, while he lived with his father. The defendant Sarah never qualified. The other defendant admits, that he is liable for tuition and books ; and that, if the plaintiff had been placed, as'a boarder, at the school in Raleigh, he would also have been liable for his board, but not for his clothes; and insists, that, while he lived with his father, he was only liable for his tuition and books; and submits to the decision of the Court, whether he is liable for his board and clothes, while the plaintiff is boarded out at School, or while he may be at the University.

Iredell, for the plaintiff.

Badger, for the defendant.

Pearson, J.

We think it clear, that the defendant is, not chargeable for the board and clothes of the plaintiff, while he lived with his father. It was conceded in the argument by the defendant’s counsel, that he is chargeable for board, as well as for tuition and books, during the time that the plaintiff has been or may be placed, as a boarder, at school, or at the University. The only question then is, whether the defendant be chargeable for necessary clothing, as well as board. If the testator had simply directed, that his nephew should be educated at his expense, it is settled by the case of Cloud v. Martin, 1 Dev. & Bat. 399—2 Dev. & Bat. Eq. 274, that the expense of board and clothes, while at school, as well as of tuition, would have been included. But it is urged, that the words: “I mean that all the expenses of the school be paid by my executors. The other expenses, not belonging to his education, to be paid by his father,” qualify and control the general words. This raises the difficulty^

It is apparent from the whole clause, and particularly from the provision, that “in case, for any reason, he could not be educated at the School in Raleigh, he was to be sent to some other school,” that the testator anxiously de- - sired his nephew to be well educated. This is the paramount and leading intent, and such a construction should be g^iven, as to carry it into effect.

Td-confine the testator’s bounty to tuition and school books, which would not exceed one fifLh of the expense of an education, would be inconsistent with the general tone of the clause, and with the assumption, which the testator, from the largeness of his bounty, thought he was at liberty to make, in directing that his nephew should be educated, and in selecting the school. The defendant’s counsel conceded, that something more was intended, than the expense of tuition and school books, and that board was to be included, embracing, of course, washing wood, candles, &c.

It is as necessary to enable him to obtain an education, that a boy should be clothed, as that he should be fed; and the enquiry is, whether there be- any ground for making a distinction between the expense of clothes, and the expense of board.

It is urged for the defendant, that the words, above recited, suppose “other expenses” besides those of “the school,” which the father was to pay ; and if clothes be included, as well as board, no meaning can be given to these words. The reply is, the argument proves too much ; if clothes are excluded, the same meaning would exclude1 board, which would be unjust to the testator, by supposing him to make large professions — “I direct my nephew to be educated at my expense;” I mean I will pay one fifth of the expense, the other four fifths to be paid by his father.

But a further 'reply is, that the words are not simply, ‘‘the other expenses,” but “the other expenses, not belonging to his education.” This explains what is meant by “all the expenses of the schooland reducing it to the single question, what are the expenses belonging to, or incidental to, or necessary for, his education ; which, as before stated, include the expense of board and clothes, while at school, as well as tuition and books. Upon the whole, we think, the testator meant, that his nephew should be educated at his expense, which includes board, clothes, tuition and books; and that the words, “other expenses, not belonging to his education,” are satisfied, by referring these to the expense of nurture, while he was too young to be sent from home, and was boarded and clothed by his father at home, to the pocket money, which boys are usually allowed, while at school and at the University, and to the expenses during vacation.

It may be, that the testator meant to make some other distinction. If he did, he has not expressed it with sufficient, clearness to make himself understood} or to justify a construction, which may defeat his bounty entirely, and prevent the execution of what seems to have been his main intent — that his nephew should have a good education.

There must be a reference, to ascertain the amount expended for the plaintiff’s board and clothes, during the time he has been boarded out; the amount, that will be necessary for his board, clothes tuition, and books, until he is prepared to enter the University , and the amount, that will be necessary for board <fcc, while he is at the University.

Per Curiam.

Decree accordingly.