Levin v. Fisch, 404 S.W.2d 889

404 S.W.2d 889 (Tex. Civ. App. 1966)

 

RULE:

According to its context and manifest use, an expression in a will of a desire or wish will often be equivalent to a positive direction, where that is the evident purpose and meaning of the testator. It would be but natural for the testator to suppose that a request, which, in its terms, implies no alternative, would be understood and obeyed as strictly as though it were couched in the language of direction and command. 

FACTS:

The decedent's will expressed a "desire" to grant a bequest to appellee sister. After decedent's death, the executors denied the sister's interest, asserting that the will did not express a mandatory bequest. The sister filed an action against appellant executors to assert an interest in decedent's estate. Both appellee and appellants filed motions for summary judgment. The trial court granted appellee's motion and denied appellants' motion. Appellants' sought review. 

ISSUE:

Did the trial court err in finding that the decedent intended a bequest to her sister?

ANSWER:

No.

CONCLUSION:

The court rejected appellants contention that the bequest was not mandatory. The court found that the trial court properly entered summary judgment for appellee because the use of the word "desire" in decedent's will was a positive directive and reflected decedent's intention to impose an obligation on appellants to comply with the terms of the will, namely payments to appellee. Accordingly, the court affirmed the judgment. 

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