Definition
In legal usage, DESIRE appears almost exclusively in the law of wills and trusts, where it functions as a precatory word — a term of wish, hope, or recommendation rather than express command. When a testator uses "desire" in directing the management or distribution of property, courts must determine whether the language is strong enough to impose a binding obligation on the recipient (creating a trust or other enforceable duty) or merely expresses a preference with no legal effect.
The word occupies contested ground. In some decisions it has been read as equivalent to a positive command, sufficient to establish a precatory trust. In others, it signals nothing more than a hope or suggestion, leaving the devisee or legatee free to act at their discretion. The outcome depends heavily on context: whether the objects of the desire are specified with clarity, whether the subject matter is identifiable, and how the surrounding language of the instrument frames the testator's intent.
Common Language
Modern common usage (Wiktionary): To want or wish for earnestly; to long for; to put a request to someone; to want emotionally or sexually.
Historical common usage (Webster's 1913): To long for; to wish for earnestly; to covet; also, to express a wish for, to entreat or request; and (obsolete) to require or demand.
The gap matters here. In ordinary English, "desire" is a straightforward expression of want or longing, carrying no obligatory force. In legal instruments — particularly wills — a court may treat the same word as imposing a binding legal duty on the person addressed. A testator writing "I desire my executor to distribute the residue among my grandchildren" may, in the eyes of equity, have created an enforceable trust, not merely expressed a wish. Researchers reading historical wills should not assume the word's conversational lightness controls its legal weight.
Common Confusion
DESIRE vs. WISH, REQUEST, HOPE, DIRECT: These precatory words exist on a spectrum. Courts have not treated them identically. "Direct" and "order" tend toward imperative; "hope" and "wish" tend toward the purely aspirational. "Desire" sits in the contested middle. Historical cases construed the same word differently depending on jurisdiction and the specificity of the objects named. Do not assume that cases interpreting "wish" control the meaning of "desire," or vice versa, without checking how the particular court drew those lines.
DESIRE vs. PRECATORY TRUST: "Desire" is a word that may — or may not — give rise to a precatory trust. The two terms are related but not synonymous. The existence of a precatory trust is the legal conclusion; "desire" is one of the triggering words courts evaluate to reach that conclusion.
Why It Matters in Research
The critical research variable is whether the objects of the desire are sufficiently specified. Both Bouvier and Anderson flag this directly: the word raises a trust where the objects are identified. A vague expression of desire directed at no particular beneficiary or subject matter is far less likely to bind. Researchers analyzing historical wills should look for that specificity before assuming trust consequences follow.
Jurisdictional variation is genuine and historically significant. The second edition of Black's notes that courts have interpreted "desire" across a range from mere preference to positive command, citing cases from Texas, New Jersey, California, and Massachusetts that did not resolve the question uniformly. A researcher relying on a single jurisdiction's case law to characterize the word generally will likely overstate the consistency of the doctrine.
The temporal dimension also matters. Nineteenth-century equity courts were more willing to find precatory trusts from gentle language than modern courts tend to be. The modern trend is toward requiring clearer imperative language before imposing a trust. Historical dictionary entries reflecting nineteenth-century doctrine may overstate how readily "desire" creates binding obligations under contemporary analysis.
When researching a specific instrument, check: (1) the jurisdiction and its particular line of precatory trust cases; (2) the date of the will and which era's interpretive rules a court would apply; (3) whether other language in the instrument reinforces or weakens the obligatory reading.
Historical Dictionary Support
The four source dictionaries converge on the core proposition: "desire" in a will can raise a trust, particularly where the objects are specified. Bouvier and Anderson make the specification point explicitly. Black's first edition offers the cleanest statement — "sufficient to create a trust, although it is precatory rather than imperative" — with a single Kentucky citation.
Black's second edition is the most analytically useful of the four. It acknowledges what the others suppress: courts have not agreed on how much weight the word carries, and outcomes have varied from mere preference to positive command. This is the more honest account of the doctrine. Researchers should treat the first edition's confident statement as reflecting one strand of case law, not a settled rule.
None of the historical dictionaries address the modern retreat from precatory trust doctrine or the increasingly demanding standards many jurisdictions now apply before treating aspirational language as trust-creating. That gap is significant for any researcher working with twentieth- or twenty-first-century materials.
Jurisdictional Note
American jurisdictions have not uniformly resolved how much obligatory force "desire" carries in a will. Some courts have treated it as equivalent to a direction; others require more imperative language before imposing trust obligations. English equity historically was more receptive to precatory trusts than American courts, and that divergence affects how English treatise authority translates to U.S. research.
Encyclopedia Cross-Reference
See Law Mind Encyclopedia: Precatory Trusts; Wills — Construction and Interpretation.