Levin v. Fisch

404 S.W.2d 889 (1966)


Bertha Cohen died. P was a sister of Bertha. Ds are the children of Bertha. Bertha's will provided for specific bequests. She devised to Ds all of her other property of whatsoever nature, real, personal, or mixed, to be divided equally between them so that each shall receive an equal share with the other in said property. The will also stated: It is my desire that each year out of the annual rent proceeds, rents and revenues from such property during such year so received by my said daughter and son they pay to my sister Mrs. Laura Fisch the sum of $2,400.00, provided such net proceeds, rents, and revenues, received by them from such property for such year is sufficient to meet such payment. In the event the net revenues from such property for any given year should be insufficient to meet such payment for such year, then the amount of the payment to my said sister for such year should be reduced in the amount of such deficiency. It is my desire that my children continue such payments during the remainder of my said sister's lifetime provided that should my sister LAURA FISCH get married, then my said children should not, after the date of such marriage continue such payment. In the event my said sister should marry, then the payment to her during the year of such marriage should be prorated as of the date of such marriage.' P sued seeking her interest in the will. Ds contend that they were entitled to judgment, as a matter of law, because the provision of the will was precatory in nature and not mandatory and amounted, in effect, to only the expression of a wish on the part of the testatrix. The court overruled Ds' motion for summary judgment and rendered judgment for P. Ds appealed.