## Facts

- Bertha Cohen executed a will in 1958 and died in 1959; the will was admitted to probate in 1960.
- Cohen’s will made specific bequests and left the residuary estate to her two children, Suzanne Cohen Levin and Jay Howard Cohen, in equal shares.
- Immediately following the residuary gift, the will stated: “It is my desire that each year out of the annual rent proceeds, rents and revenues from such property … they pay to my sister Mrs. Laura Fisch the sum of $2,400.00,” conditioned on (i) sufficient net rents and revenues, and (ii) payments continuing only while Fisch lived and remained unmarried.
- Fisch (the testatrix’s sister) had limited assets and impaired health; the testatrix had regularly provided Fisch about $200 per month and additional gifts during life.
- The children had previously received substantial property from their father’s estate.
- Fisch sued the children individually and as independent executors, asserting the will created an enforceable right to $2,400 per year from net rental income.
- The parties stipulated the material facts and filed cross-motions for summary judgment; the trial court granted Fisch summary judgment and denied defendants’ motion.

## Issues

1. Whether the will’s “It is my desire” clause was precatory (nonbinding) or a mandatory directive creating a legally enforceable interest for Fisch.
2. Whether, on stipulated facts and will construction, summary judgment for Fisch was proper as a matter of law.

## Decision

- The appellate court affirmed the summary judgment for Fisch.
- The court held the “desire” language, read in context and in light of known circumstances, imposed a mandatory obligation on the children to make the stated payments.
- Fisch acquired an enforceable right to receive $2,400 annually from net rents and revenues of the devised property, subject to the will’s express conditions (sufficiency of income; Fisch’s life and unmarried status).

## Legal Principles

- Words such as “wish,” “desire,” or “request” are prima facie precatory, but they may be construed as mandatory when the testamentary intent, gathered from the whole instrument and surrounding circumstances, shows an intent to impose a legal duty.
- Intent is determined from the will as a whole, including the placement of the disputed clause and whether it qualifies or burdens the beneficiary’s enjoyment of the gift.
- Specific, definite terms (fixed amount, identified source of payment, duration, and express conditions) support enforcement of a provision even if introduced by precatory wording.
- A testamentary direction may operate as a charge on devised property or its income; it need not be framed as a command to executors to be enforceable against devisees.
- Where material facts are stipulated and the dispute turns on will construction, the issue is one of law appropriate for summary judgment.

## Conclusion

The court construed the will’s “desire” clause as a definite support directive that legally burdened the children’s enjoyment of the residuary property, entitling the sister to annual payments from net rental income for life while unmarried, and affirmed summary judgment enforcing that obligation.


Levin v. Fisch, 404 S.W.2d 889 (Tex. Civ. App.—Eastland 1966, writ ref’d n.r.e.)