Keith v. Worcester County Trust Co.

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Before WILKINS; WHITTEMORE
• Citation: Keith v. Worcester County Trust Co., 153 N.E.2d 630, 338 Mass. 41 (Mass. 1958)
• Decision Date: 04 November 1958
• Parties: Mildred Park KEITH v. WORCESTER COUNTY TRUST CO., executors and trustees, et al.

Page 630

153 N.E.2d 630

338 Mass. 41

Mildred Park KEITH v. WORCESTER COUNTY TRUST CO., executors and trustees, et al.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Sept. 22, 1958.

Decided Nov. 4, 1958.

George M. Poland, Boston, for petitioner.

Thomas R. Mountain, Worcester, for respondents Worcester County Trust Company et al., executors and trustees.

Joseph Talamo, Worcester, for respondents Luke Thomas Keith et al.

Before WILKINS, C. J., and WILLIAMS, COUNIHAN, WHITTEMORE and CUTTER, JJ.

WHITTEMORE, Justice.

The appealing petitioner asked a declaratory decree to construe a provision in her husband's will which authorized trustees thereunder to make payments to her from the principal of a residuary trust. The language to be construed is italicized in the following quotation:

'To pay the net income therefrom semiannually or oftener in the discretion of my said trustees to or for the use, benefit, comfort, support, and enjoyment of my wife, Mildred Park Keith. I authorize and empower my said trustees to make utilization of the principal for the foregoing purposes at such times and to such extent as my said wife, Mildred Park Keith, desires. Upon remarriage or death of my said wife * * * this trust shall terminate, and the principal thereof with any and all accruals thereto shall be paid and distributed, free and discharged of trust in the following manner * * *.'

The decree recited 'that by the terms of said trust the petitioner has the right to request of the trustees reasonable payments from principal for her use, benefit, comfort, support and enjoyment and the trustees when they find such requests to be reasonable and made in good faith, are authorized and empowered to make such reasonable payments from principal to the widow on her request made during her lifetime or before her remarriage.' $The appellant asks that the decree be modified to declare the petitioner entitled to receive from principal such amounts as she shall desire in good faith for the purposes stated.

We deem the construction of the decree to be substantively correct and rule that no modification is required. The language used in the will is not ambiguous. There is nothing to weaken the force of the words 'authorize and empower' as words importing permission and implying discretion, rather than direction or command. Welsh v. Spillane, 311 Mass. 746, 43 N.E.2d 2. And see Lovett v. Farnham, 169 Mass. 1, 6, 47 N.E. 246. The use of the words 'or oftener in the discretion of my said trustees' to qualify the otherwise unqualified obligation to pay income semiannually does not suggest that it was inappropriate or inconsistent to use the words 'authorize and...