45 Cal. 696 | Cal. | 1873
There was no error in the order of the Probate Court setting apart a homestead for the use of the widow. Section one hundred and twenty-one of the Probate Act, as amended in 1870 (Stats. 1869-70, p. 400), provides that “the Court or Probate Judge may, of his own motion or on application,
The words “may set apart,” as used in the one hundred and twenty-first section, do not leave the matter to the discretion of the Probate Judge. Clearly it was not intended to leave to his 'discretion the question whether or not the personal property exempt by law from execution, or the homestead selected under the provision of the general homestead law, should be set apart; and we see no more reason to suppose that it was intended he should exercise a discretion in reference to setting apart the homestead to be selected under the provisions of section one hundred and twenty-four. The word “may,” in public statutes, is often used for must or shall, and is construed imperatively.
We are of the opinion that whenever a proper application is made under this statute for the setting apart of a homestead, “may” is to be construed as “shall,” and the Court has no discretion to refuse the application.
Order affirmed.