Opinion
No. 03-1018-FT.
Opinion Released: October 23, 2003. Opinion Filed: October 23, 2003. Opinion Withdrawn: October 27, 2003.
APPEAL from an order of the circuit court for Rock County: JAMES WELKER, Judge. Affirmed.
Before Deininger, P.J., Dykman and Vergeront, JJ.
.
Frederick Sanger appeals the circuit court's order construing the terms of the will of his mother, Barbara Sanger. The issue is whether Barbara's will creates a precatory trust. This case has been placed on the expedited appeals calendar pursuant to Wis. Stat. Rule 809.17 (2001-02). We affirm.
All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
¶ 2. Barbara's will provides:
In the event I own a home as of the date of my death, it is my wish that if any child of mine wishes to reside in such home he or she shall be allowed to by my other children, PROVIDED HOWEVER such child or children that choose to live in the home shall pay any mortgage payment, real estate taxes, insurance premiums, ordinary and necessary upkeep expenses and utilities. Major repairs or improvements shall be shared equally by my children. "Major repairs or improvements" is defined to mean any repairs or improvements reasonably necessary to preserve the property and costing in excess of $500.00 per repair or improvement. My child or children may possess the home as provided above for a period not to exceed ten years from the date of my death.
¶ 3. Frederick, who lived with his mother before her death, continued to live in the home after she died under the terms of the will. After several years, the personal representative of his mother's estate, Frederick's brother, served him with a notice terminating his tenancy. Frederick vacated the home and commenced this action, arguing that he had a right to stay in the home pursuant to the will. The circuit court disagreed.
¶ 4. Frederick's argument that he has a right to remain in the home focuses on this sentence in the will: "In the event I own a home as of the date of my death, it is my wish that if any child of mine wishes to reside in such home he or she shall be allowed to by my other children. . . ." Frederick contends that this language creates a precatory trust.
¶ 5. Where, as here, we are called upon to interpret a will based on undisputed facts, we review the circuit court's decision de novo. Holy Family Convent v. DOR , 157 Wis.2d 192, 195, 458 N.W.2d 579 (Ct.App. 1990). Our primary goal is to discern and give effect to the testator's intent. Id. "Intent is gleaned from the will's language, the entire testamentary disposition, and the circumstances surrounding [the will's] execution." Id. at 196. Usually, "precatory" words in a will are recommendations to the devisee, but are not binding commands. See Wilson v. Dixon, 250 Wis. 284, 291, 26 N.W.2d 667 (1947). However, words that are precatory in nature may become mandatory where it is the clear intent of the testator that the words be mandatory. See Salvation Army v. Appleton State Bank, 248 Wis. 520, 22 N.W.2d 604 (1946). Precatory words that are imperative in nature and directed to a personal representative indicate a trust, while the same words directed to a devisee do not. Baker v. McBride , 14 Wis.2d 577, 580-81, 111 N.W.2d 407 (1961).
¶ 6. We conclude that the will does not create a precatory trust. The will provides: "it is my wish that if any child of mine wishes to reside in such home he or she shall be allowed to by my other children." This language gives Barbara's other children some say in the matter. When a testator uses precatory words that are imperative in nature but directed to a devisee, here the children, the supreme court has held that those words do not create a trust. Id. That general rule is in accord with our reading of the will in this case. Barbara expressed her wish that any child who wanted to live in the home be able to do so, but did not bind the other children to that arrangement because she provided that they must allow their sibling to do so.
By the Court. — Order affirmed.