HAMMOND v. HAMMOND 379

amount allowed to him as commission by the order confirming the
auditor's report, (h)

It may be observed, that there are few men, who, in speaking or writing, do not
express themselves in such a manner that, if you understand them according to the
strict rules of grammar, you make them speak contrary to their Intention.

It is alleged, without proof, that Alexander was burthened with the education of
his brother on account of his, the said Alexander's, having already received a good
education; and that by so charging him, equality was preserved. But it is not so.
In such a case, the eldest son would be educated at the charge of the whole estate,
and the younger at the charge of the elder's part. For illustration, suppose the
whole estate to be £4,000; and that £500 had been expended in educating Alex-
ander more than had been expended on John. To make them equal, it ought to be
directed that £500 shall be expended on John, and the residue divided between them.
In that case, they will have been educated at equal expense, and the share of each will
be £ 1,750. But, according to the construction contended for, they will have been
educated at equal expense, and John will get £ 500 more than his brother; that is,
they each share £2,000 out of the £4,000. John has his part clear; but £500 is
taken from Alexander to educate and maintain John. When the contemplation of
equality is so apparent; when an easy, obvious transposition will support that equality;
and when, without the transposition, such inequality takes place, it is impossible to
admit the claimant's construction of the will. 'My will and desire is, that my son
Alexander, out of his part of the estate, shall expend so much money,'&c., as
already has been observed, is strange language to constitute a charge on Alexander's
part. ' My will and desire,' are words very significant; ' to expend so much
money,' are equally so. In short, the meaning of the whole clause was, that
Alexander, the executor, should be authorized to lay out as much of John's part of
the personal estate as would suffice to give him a liberal education. Without this
provision in the will, John's education might be defective. The guardian, whom
he might choose, or who might be appointed, without the provision, might not
think proper to expend so much money as might suffice; particularly, if the annual
profits should not correspond with the proofs in the cause, or might happen, in
some years, to fall short.

In addition to all this; supposing us compelled to take his for Alexander's, it may
be asked whether good education must comprehend maintenance; or whether, to
prevent the great inequality in favour of a younger son, education might not mean
barely the price of tuition, books, &c. lodging, food, and clothing, must be had
whether at school or at home; and, therefore, it might be said, that he who is charged
with education is not, of course, charged with those articles of necessity. In con-
struing a will, it is notorious, that the judges have never considered the question as
a mere point of grammar. The question ever is, 'what was the intent of the testa-
tor,' to be collected from the whole of his words. Amongst grammarians, there is
no doubt, that his is considered, in propriety, as referring to the antecedent, if there
be one, and not to a subsequent. It may, indeed, in this case, be contended, that the
testator was not aware of any antecedent, or any rule of grammar. It is probable,
that he was no grammarian. Let it just be supposed, that he had appointed two
executors; and had said 'my will and desire is, that my executors, instead of saying
my son Alexander, do, out of his part of my estate, expend, &c. &c. Is there even a
rigid grammarian, who would say, that the testator violated the rules of grammar.

(h) Brown v. Wallace, 29th February, 1816, post.