JAMES G. WELSH & another vs. MAURICE P. SPILLANE, executor.

JAMES G. WELSH & another vs. MAURICE P. SPILLANE, executor.

311 Mass. 746

May 11, 1942

Decree affirmed. This is a petition brought in the Probate Court against the executor of the will of Edward J. Welsh, late of Quincy, that he be ordered to discharge a mortgage held by the deceased of which the petitioners are mortgagors, by reason of a provision in the will of the deceased, following the naming of an executor, "I hereby authorize and empower my said Executor when appointed, to cancel & discharge any mortgages that stand in my name, and give proper discharges of the same." A decree was entered dismissing the petition, and the petitioners appealed. The evidence is reported, but there is no report of material facts. There was no error. While the words "authorize and empower" may in some circumstances be mandatory, they ordinarily import permission rather than command. They imply discretion. Seeds v. Burk, 181 Penn. St. 281, 290. See also Jones v. Commissioners, 137 N. C. 579, 590; People v. Grant, 58 Hun, 455, 457. Neither the context of these words in the will nor the circumstances disclosed by the evidence lead to the conclusion that these words are used other than in their ordinary sense. See Barrus v. Kirkland, 8 Gray 512 , 513; Turnbull v. Whitmore, 218 Mass. 210 , 214. The provision of the will relied on by the petitioners is to be construed as permissive rather than mandatory.