
    *Collins’s Adm’x &c. v. Janey and Another.
    December, 1831.
    (Absent Tuckeb, P.)
    Deed — Assignment of Debts Now Due — Effect—Case at Bar. — T. O. by Us will dated 17th May, gives one third of his whole estate to wife for his life, remainder to his two children T. and B. and the other two thirds to T. and B. presently; then, by deed dated 28th May, he assigns "all debts now due to him" to a trustee for his son T.— Heijd, this deed assigns all debts due and payable to the donor at the date of the deed, but not such debts as tho’ contracted had not become payable at the date of the deed.
    Same — Will—Election.—And, it seems, T. may elect to claim, either under the will, or under the deed; he cannot claim the subject given by the deed, and then claim his moiety of two thirds of the estate as the legatee or devisee under the will.
    Thomas Collins late of King & Queen deceased, made his last will and testament on the 17th May 1826, whereby he devised and bequeathed one third of his estate to his wife Virginia for life, remainder to his two children Elisabeth and Thomas, to be equally divided between them; and the other two thirds to the two children, to be equally divided between them, with some executory limitations in case either or both of the children should die before attainment to full age or marriage. And the same T. Collins afterwards, by deed dated the 26th of the same month, — reciting, that the deed was made for the purpose of advancing his son Thomas with certain gifts, which it should not be in his power to revoke,— transferred and assigned to Joseph Janey, “all the debts now due to the said T. Collins” [the father] “whether the same be due to him by bond, bill, note, judg-ment, account or otherwise,” “the amount of which debts will appear by a schedule hereto annexed,” upon trust to allow T. Collins, the father, to collect the debts and enjoy the interest of the money during his life, and after his death, if T. Collins, the son, should survive him, to hold such money as should have been previously collected, and to collect and hold the residue, and to apply the same to the support, maintenance and education of T. Collins, the son, during his minority, and to pay him whatever *should remain unex-pended, if any should remain, so soon as he should attain to full age; and if the son should attain to full age before the father’s death, then to pay the whole amount to him at the father’s death; with executory limitations to the grantor’s daughter Elizabeth, in case the son should die before his father without issue, or after his father, under age and without issue &c. There was no schedule of the debts annexed to the deed. T. Collins, the father, died not long after the execution of the deed. His will was proved and recorded in the county court of King & Queen, at August term 1826; and administration with the will annexed, was granted to his widow Virginia Collins.
    Upon a bill exhibited in the superiour court of chancery of Richmond, by Virginia, the administratrix with the will annexed, against Janey, the trustee named in the deed of the 26th May 1826, and T. Collins, the cestui que trust, two questions arose; 1. Whether T. Collins, the son, could claim the subject assigned to the trustee for his use by the deed, and at the same time claim under his father’s will, one third of his other estate? and 2. Whether he was entitled under the deed, to all debts which had' been contracted to his father at its date, as well those which had then become payable, as those which were to become payable at a future time, or only such debts as had not only been contracted but had become payable before and at the date of the deed? in other words, what was. the import of the words in the deed, all the debts now due?
    It appeared, by accounts taken by order of the court, that there were debts which had been contracted and become payable to. T. Collins, the father, before and at the date of the deed of the 26th May 1826, to the amount of about S000 dollars ; that there were debts contracted to him before and at that date, but which had not then become payable, to the amount of about 200 dollars ; and that his whole property, real and personal, including debts of both descriptions, was, at the date of his will and of the deed, of the value of about 13300 dollars.
    *The chancellor was of opinion, and accordingly decreed, that T. Collins, the son, could not claim both under the deed of the 26th May 1826, and tinder the will of his father; and that, if he should elect to claim under the deed, he was entitled under it, to all the debts which had been contracted to his father before and at its. date, as well such as became payable after-wards, as those which were then payable. From this decree, Mrs. Collins, the admin-istratrix, appealed to this court.
    Johnson, for the appellant.
    Michie, for the appellees.
    
      
       See monographic note on “Deeds" appended to Flottv. Com., 12 Grail. 584.
    
   BROOKE, J.,

delivered the opinion of the court. The question as to the correctness of this decree, depends on the construction of the words in the deed of the 26th May 1826, describing the subject thereby assigned by Collins to Janey, in trust for his son — “all the debts now due to the said T. Collins” &c. The chancellor thought, that this description in the deed, included all his debts, those then contracted but payable in future, as well as the debts then payable. The words of the sentence are perfectly intelligible. They contain no latent ambiguity, so that a resort to the will, or to any thing else extrinsic of the deed, to explain them, would be improper. If there would be a doubt, whether the words all my debts due would include debts not payable though contracted, debita in presenti solvenda in futuro, the donor has guarded against that doubt, by inserting the word now. All his debts now due, in common parlance, must be understood to mean, debts then payable, not debts payable at a future day. The word now could not have been inserted, to excludé debts that might be afterwards contracted, debts not then in existence, because they would not be subjects of transfer, and could not have been in the mind of the grantor. If he had meant to speak in technical language, he would have omitted the word now. *And even if he had omitted it, there are many examples in which both judges and legislators have interpreted and used the words debts due, in the limited sense of debts payable, not in the broader technical sense, including all debts contracted whether payable or not. Without deciding any thing more in the cause, this court reverses the decree, on this point.  