The bill was filed by the three grandchildren against Joseph Martin, the surviving administrator, to have the value of the bequests in their favor ascertained, and also the sums that 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. But the bill alleged that they were not sufficiently provided with clothing, and that neither for that nor their schooling was payment made by the (276) administrators, or either of them.
The bill charged in respect to the other plaintiff, John M., that he was imperfectly 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 grandfather, 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 of his grandfather'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 *Page 230 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 the 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. We had occasion, in an action at law, some years ago, to intimate some of the opinions we had upon this will. Cloud v. Martin, 18 N.C. 397. Upon a refusal of it, we all think as we then did as to the extent of the benefit intended for the grandson. The education to be provided from the estate was that which would be received during the period the children were to be "raised and taken care of" by their uncle; which, it seems to us, (277) must be while they were infants and going to school. The testator did not mean that James Martin should control the grandson 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 pretense 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 testator was that at full age the grandson would have the entire control of the capital of his own small property, 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 restrictions 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 seminaries of learning. We have no doubt, therefore, that he designed to have this youth bred at such grammar schools *Page 231 in his vicinity as his own sons had been brought up in, under 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 in school, whether the schools were proper, how much longer or to what other schools, if any, he ought to have been sent, are all questions on which the (278) case must go before the master, if either of the parties wish an inquiry 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.
The Court is also of opinion that the testator did not mean to maintain his granddaughters absolutely until full age or marriage, nor to take 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 country, 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 young women in the same station of life with these are deemed capable of providing for themselves, or of rendering such services in the paternal household 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 anything on that part of the defense 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, if the fact should so turn out, it may be material hereafter to inquire. But it does not appear, 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, he wasted. Now, admitting it to have been so, that loss ought not to fall on these persons more than on the residuary legatees; for it was not set apart or dedicated to this purpose in particular, or in any manner secured therefor. The loss must, therefore, fall on those entitled to the residue. (279) *Page 232
As the defendant does not admit assets of the testator in his hands to answer this demand, and denies his liability for the devastavit of James Martin, of course, an account must be taken of the estate of the testator that was at his death liable under the will to this charge, and of its administration, so as to show whether the defendant has, or ought to have, of the estate of his testator any fund to answer the recovery of the plaintiffs.
PER CURIAM. Order accordingly.
Cited: Lindsay v. Hogg, 41 N.C. 5.