1833. STORRS บ. BENBOW. "hath," though of the present tense, might well be applied to such children. If the same principle be applied here, and the same punctum temporis be taken for interpreting the expressions used by the testator, the words "to be born," which are emphatically words of futurity, must be extended to the after-born children. This is an immediate gift at the death of the testator, and is confined to the children then living. The words "may be born," provided for the birth of children between the making of the will and the death. The cases of Sprackling v. Ranier, and Ringrose v. Bramham are direct authorities to this point. To give a different meaning to the words "may be born," would impute to the testator the inconvenient and improbable intention that his residuary personal estate should not be distributed until after the deaths of all the children of either of his brothers. 1833. WARREN v. DAVIES. RICHARD DAVIES began his will in the following words: "First, I will and direct that all my ROLLS. July 1. 8. A testator in directs the the first place his debts and after named. He afterwards devises a real just debts, legacies, funeral expences, and testamentary payment of charges, shall be paid by my executors hereinafter legacies by his named." He then gave his real estates in the parishes executors of Whittington and St. Martin's, and also all his money, farming stock, household furniture, and effects, to his wife for life, and after her decease he directed the whole of his property on Ifton Rhynn to be sold as his executors thereinafter named should direct, and he devised certain of his messuages and lands in Whittington aforesaid, to his son Thomas Davies in fee. After making divers pecuniary bequests to his other children, the testator gave the residue of his estate and effects, both real and personal, to his said son Thomas Davies. The executors named in the will were the testator's son Thomas Davies, and Roger Ward Davies, both of whom proved the will. John Davies was the eldest son and heir-at-law of the testator. Both the executors attested the execution of the will, and the devise of the real estate to Thomas Davies being therefore void under the 25 G. 2. c. 6., and the estate having descended on John Davies the heir-at-law, the question in the cause was, whether the estate, which the will purported to devise to Thomas Davies, was or was not charged with the payment of debts and legacies, by the effect of the first words of the will. VOL. II. E Mr. estate to his son T. D. in fee; and in a subsequent part of his will names 1'. D. and another person his who both prove the will. The estate devised to T. D., not being a devise to the executors after named, executors, is not charged with debts and legacies. 1833. WARREN บ. DAVIES. Mr. Bickersteth and Mr. G. Richards, for the legatees, contended that the introductory passage in the will, by which the testator first directed all his just debts and legacies, &c. to be paid by his executors thereinafter named, coupled with the appointment of Thomas Davies as an executor, in effect amounted to a charge of those debts and legacies upon all the property which was devised to Thomas Davies by any subsequent part of the will; Clifford v. Lewis (a), Henvell v. Whitaker (b). Such devise, it was true, as far as it applied to the interest of Thomas Davies, was rendered invalid by the operation of the 25 G. 2. c. 6. ; but still the testator's heir-at-law, on whom, in consequence of the failure of the devise, the estate descended, was in equity bound to hold it, subject to all the charges which the testator had intended to impose on it in the hands of his devisee, including of course the payment of the legacies, if the personal estate proved insufficient for that purpose. Mr. Pemberton and Mr. Pegge, contrà, for the heir-atlaw, submitted, that even if the devise had been effectual, a charge which was imposed upon the property given to the individuals who should fill the joint office of executors, could not extend to a devise made to Thomas Davies alone in his private capacity, so that Henvell v. Whitaker had no application. Whether that were so or not, however, the title of the heir-at-law in this case was not under, but paramount to the will, and it could not therefore be affected by any charge which that instrument attempted to create; Powell v. Robins (c), Parker v. Fearnley (d), Willan v. Lancaster. (e) Mr. J. J. Jervis, for the executors. (a) 6 Madd. 33. (d) 2 Sim. & St. 592. Mr. Mr. Bickersteth in reply. The MASTER of the ROLLS. Where a testator directs his debts and legacies to be paid by his executors after named, all property given to the persons, who are named executors jointly, will be charged with the payment of debts and legacies. The devised estate in question is not given to the executors jointly; it is specially devised to Thomas Davies, who happens to be one of the executors, but it is not for that reason to be considered as given to the executors, and charged with the payment of debts and legacies within the intention of the testator. 1833. WARREN v. DAVIES. July 8. 1833. ROLLS. June 21. Where a sum of stock was bequeathed to THE STEED v. CALLEY. HE bill was filed by Mr. and Mrs. Steed, against Charles Calley, the executor of Richard Smith, for woman, whose payment of a legacy of 20%. in the long annuities, bequeathed by the will of Smith to Mrs. Steed absolutely. a married husband was of unsound mind, though no commission of lunacy had issued against him, the Court, on a bill filed by the husband and wife for payment of the legacy, transferred the fund into Court to the joint account of the Plaintiffs, and afterwards, in con sideration of the poverty of The answer of the Defendant stated, that Mr. Steed, the husband, was of unsound mind; but no other objection was made to payment of the legacy. No commission of lunacy had issued against Mr. Steed. At the hearing of the cause on the 14th of June 1833, the Master of the Rolls, in consideration of the poverty of the parties, directed the 201. long annuities to be transferred to the Accountant-General, to be carried to an account, entitled "the husband's and wife's account;" and his Honor at the same time suggested, made an order, that a petition might then be presented by Mrs. Steed, supported by an affidavit of the husband's insanity, and praying that the dividends might be paid to her during her life. the parties, on the pe tition of the wife, that the dividends should be paid to her for her life. A petition to that effect was accordingly presented, and now came on to be heard. From the statement in the petition, which was verified by affidavits, it appeared that the husband was of unsound mind, and incapable of managing his affairs, and that he was in confinement in a lunatic asylum; that he had a large family of young children, who resided with |