| Mass. | Oct 27, 1904
This is an appeal from a decree of the Probate Court, allowing an executor’s account. The only items which are objected to by the appellants are for payments made by the executor for expenses of defending the estate from claims which were deemed unjust, and of proving the will, and of resisting an attack upon it by persons interested in preventing its allowance. No question is made in regard to the amount of
The objection to their allowance is founded entirely upon the fact that, on the same day on which the will was executed, the testator made a deed of his real estate to the trust company which was named in the will as executor, conveying all his real estate upon certain trusts. The ninth clause of the deed is as follows: “ After my death said trustee may use as much of the income from said property as may be necessary, or the proceeds of the sale of the property, in defending my estate from any claims which it deems to be unjust, and particularly in defending any proceedings brought to invalidate this trust; also for the sustaining of said trust and the probate, or sustaining of my will dated this day, and to defend any attack against said will.” The will recites the provisions of the deed of trust and is made subject to them, with a scheme for the disposition of the property conveyed by the deed, in case the deed should be set aside. The testator had a substantial amount of personal property which was disposed of by the will. No proceedings were brought to set aside the deed, except so far as its validity was involved in the controversy as to the validity of the will.
The accou'nt was rightly allowed, unless the ninth clause of the deed made the expenses of sustaining the will, in view of the objections to it, a charge upon the real estate conveyed in trust which it was the duty of the trustee to pay out of the trust property. The appellants contend that the word “may” in the ninth clause of the deed, taken in connection with the will and the other parts of the' deed, must be held to mean “ must.”
We will not pass upon the contention of the executor that, even if the trustee ultimately should pay these expenses under the deed, they should still be allowed first in the executor’s account, as primarily chargeable upon the estate left by thé testator. But we will assume, without deciding, that inasmuch as the same corporation is both trustee and executor, if these sums were to be paid out of the trust property the corporation would be chargeable in its executor’s account for an amount as
It is a familiar rule of law that the language of a written instrument is ordinarily to be construed according to its plain and natural meaning. This rule applies unless there is something in the particular case which obliges the court to give the words a different meaning. Minor v. Mechanics Bank, 1 Pet. 46" court="SCOTUS" date_filed="1828-02-18" href="https://app.midpage.ai/document/minor-v-the-mechanics-bank-of-alexandria-85563?utm_source=webapp" opinion_id="85563">1 Pet. 46, 64. Moran v. Prather, 28 Wall. 492, 501. Hill v. Hill, [1897] 1 Q. B. 483, 486. Mallan v. May, 13 M. & W. 511, 517. The word “ may,” in its primary and common use, is enabling only, not imperative. Commonwealth v. Haynes, 107 Mass. 194" court="Mass." date_filed="1871-03-15" href="https://app.midpage.ai/document/commonwealth-v-haynes-6416462?utm_source=webapp" opinion_id="6416462">107 Mass. 194, 197. Commonwealth v. Chance, 174 Mass. 245" court="Mass." date_filed="1899-09-07" href="https://app.midpage.ai/document/commonwealth-v-chance-6426824?utm_source=webapp" opinion_id="6426824">174 Mass. 245, 247. Newburg Turnpike Co. v. Miller, 5 Johns. 101" court="N.Y. Sup. Ct." date_filed="1809-11-15" href="https://app.midpage.ai/document/embree--collins-v-hanna-5472465?utm_source=webapp" opinion_id="5472465">5 Johns. 101, 113. Williams v. People, 24 N.Y. 405" court="NY" date_filed="1862-06-05" href="https://app.midpage.ai/document/williams-v--the-people-3616830?utm_source=webapp" opinion_id="3616830">24 N. Y. 405, 409. McIntyre v. McIntyre, 123 Penn. St. 329. Lovell v. Wheaton, 11 Minn. 92, 101. A different meaning is sometimes given to it in the construction of statutes, where the rule seems to be, “ that the word ‘ may ’ means ‘ must ’ or ‘ shall,’ only in cases where the public interest and rights are concerned, and where the public or third persons have a claim, de jure, that the power should be exercised.” Newburg Turnpike Co. v. Miller, ubi supra. State v. Sweetsir, 53 Maine, 438, 440. Bolling v. Mayor of Petersburg, 3 Rand. (Va.) 563, 580.
In view of these familiar rules of construction, and especially when we notice the difference in the meaning of. the words “ may ” and “ shall ” in clauses four, five, six, seven, eight, nine and eleven of this deed, we think it quite plain that the deed does not require the trustee to pay'these expenses out of the trust estate, and that therefore the items objected to were rightly allowed in the executor’s account.
Decree affirmed.