There is a provision of the statute under which the proceedings setting apart the homestead were taken that precludes the appellants' construction of it. Section fifteen of Act of April 4th, 1870 (Stats. 1869-70, p. 798), provides that: " In proceedings under this Act (to set apart a homestead in the Probate Court), the following persons shall be deemed interested, namely: heirs, in case of intestacy, devisees, taking the interest of the estate in the homestead property; legatees and creditors, for the payment of whose claims the said interest is, in the judgment of the Court, likely to be required." Thus, it is plain that the statute itself contemplates and provides that the interest or estate of the devisee under a will is subject to be defeated in whole or in part by having the homestead set apart out of the estate, notwithstanding a will otherwise disposing of it.
OPINION By the Court:
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, set apart, for the use of the husband or wife, or the minor child or children of the deceased, all personal property which is by law exempt from execution, and the homestead as designated by the general homestead law, or by section one hundred and twenty-four of this Act." Section one hundred and twenty-four provides that there shall be set apart for the use of the widow or minor child or children: " Fifth, the homestead, consisting of any quantity of land not exceeding twenty acres, and the dwelling house thereon, with its appurtenances, not being included in any incorporated town or city; or instead thereof, a quantity of land not exceeding one lot, in any incorporated town or city, and the dwelling house thereon, and its appurtenances, to be selected by the widow, or if there be no widow, to be designated by the Probate Judge, and not to exceed in any case more than five thousand dollars in value."
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.