I am unable to concur in the majority opinion. If testator had intended to make it mandatory upon his trustees to pay deficiencies out of the reserve fund, he would doubtless have so expressed his intention in paragraph 11 of his will, which is set out in the majority opinion. He was there dealing with the subject of deficiencies in income for the payment of annuities. He there provided that, if the annual income should be insufficient to pay all of the annual bequests in full (after the payment to his wife), then the balance of such annual income for that particular year should be distributed pro rata among the other beneficiaries. Here was the place to provide, if testator intended so to provide, that the deficiency should under all circumstances be made up from the reserve fund, at least so far as it would go. But he did not so provide, but instead provided for a pro rata reduction.
This view is further fortified by the provision in the same paragraph that such deficiencies should not be made good out of the income of any succeeding year. To make up deficiencies out of the reserve fund is but an indirect way of making good such deficiencies out of the income of succeeding years, for it then became necessary to make good to the reserve fund in succeeding years any amounts withdrawn therefrom to meet deficiencies in payments of annuities.
It seems to me that the mandatory requirement to make up such deficiencies was not laid upon the trustees, but that testator left it to their sound judgment and discretion so to do if so advised. I am unable to escape this conclusion if full effect is given to paragraph 11 and the word "may" be taken in its ordinary meaning. This is especially true since testator frequently used the word "shall" when he plainly intended to make mandatory provisions.
For these reasons, I respectfully dissent. *Page 654