Welsh v. Spillane

Massachusetts Supreme Judicial Court

Welsh v. Spillane

43 N.E.2d 2, 311 Mass. 746, 1942 Mass. LEXIS 782

CourtMassachusetts Supreme Judicial Court

DecidedMay 11, 1942

StatusPublished

Cited by4 cases

This text of 43 N.E.2d 2 (Welsh v. Spillane) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Welsh v. Spillane, 43 N.E.2d 2, 311 Mass. 746, 1942 Mass. LEXIS 782 (Mass. 1942).

Pincite

Opinion

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 wdlieh 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.

Free access — add to your briefcase to read the full text and ask questions with AI

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 wdlieh 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.

Cite This Page — Counsel Stack

Bluebook (online)

43 N.E.2d 2, 311 Mass. 746, 1942 Mass. LEXIS 782, Counsel Stack Legal Research, https://law.counselstack.com/opinion/welsh-v-spillane-mass-1942.

Opinion

Related

Cite This Page — Counsel Stack