I am unable to concur with the other members in the opinion of the court. In sustaining the appellant's exception to the decision of the trial justice in the superior court in Ex. c. No. 7932, by which the decree of the probate court denying the appellant relief under G.L. 1923, chap. 369, sec. 10, was sustained, they rely solely on a construction of that section which in my judgment is erroneous.
The first sentence of that section is as follows: "If further assets come to the hands of an executor or administrator after the expiration of one year from the date of the first publication of notice of the qualification of the first executor or administrator, he shall apply said assets to the payment *Page 447 of the claims of creditors and account therefor in the same manner as assets received within said year; and if the surplus of such assets remaining after payment of said claims in full is in the opinion of the probate court sufficient to warrant so doing, the probate court may order notice given of the receipt of such assets and may extend the time for filing claims not to exceed six months after such notice. (italics mine)
In its construction of this language the court gives the same meaning to the word "may", which is italicized above, as if it were "shall", and holds, in substance and effect, that the judge of the probate court has no discretion, except in the matter of deciding whether the surplus of new assets, remaining after the payment of the unpaid claims already filed, are sufficient in amount to make it worth-while to permit new claims to be filed, and that, if he finds that the new assets are sufficient, hemust give notice of the receipt of such assets and extend the time for the filing of claims.
I admit that the word "may" is sometimes given the same effect as the word "shall" would have in the same place. But that should be done only when the context and the carrying out of the evident purpose of the provision in question clearly require such a construction. As to the statutory provision now under consideration, I can see no good reason for such an interpretation.
I am convinced that the word "may" in this statute should be given its natural and ordinary meaning; and that when new assets have come into an estate, as set forth in the statute, and in the opinion of the judge they are not too small in amount to make it worth-while to extend the time for the filing of claims, he still is not required to extend such time, but may do so or not in the exercise of a sound discretion. In my judgment the provision should be given a like construction to that given to the similar, though more detailed and explicit provision in the latter part of G.L. 1923, chap. 365, sec. 3. See Mackenzie Shea v. Rhode *Page 448 Island Hospital Trust Co., 45 R.I. 407; Tillinghast v.Iverson, 50 R.I. 23; Rhode Island Hospital Trust Co. v.Simons, 60 R.I. 108, 197 A. 190. As to the application of the first part of this same section 3, see Di Benedetto v.Capone, 48 R.I. 14.
In my opinion the probate court is given by the section 10 now in question a wide, though not unlimited discretion, which is subject to review and may be reversed for a clear abuse. It is also my opinion, which I believe is supported by the authorities on the subject, that among the considerations which may properly guide the exercise of such discretion are the length of time which has elapsed since the expiration of the regular time for filing claims and the resulting difficulty of contesting claims; the apparent merits or demerits of any claim or claims, in behalf of which an extension of time for filing is sought; the reasons for not filing such claim or claims within the proper time; and any other considerations which affect the question whether such an extension of time ought to be ordered.
In the instant case the judge of the probate court, after a full hearing and, so far as appears, after giving proper attention to every consideration which should affect the exercise of his discretion, refused an extension of time under G.L. 1923, chap. 369, sec. 10. So, likewise, the matter was fully heard on appeal in the superior court and the justice who heard it there, without a jury, found that the judge of the probate court had not abused his discretion; and he also found, in the exercise of his own discretion, that an extension of the time for filing claims should not be granted.
It is my considered judgment that neither of these judges committed any abuse of discretion or other error, as to the application of the section in question, and that the appellant's exception based on that section should be overruled. As no ruling is made in the opinion of the court as to the exception based on G.L. 1923, chap. 365, sec. 3, I do not discuss that section. *Page 449