Hone v. Kent

By the Court,

Mitchell, J.

Chancellor Kent made his will, dated 22d August, 1846. He died on the 12th of December, 1847, leaving his widow, and Ms son William Kent, and his daughters Mrs. Hone, the plaintiff, and Mrs. Stone, his only heirs at law. A number of the children or grandchildren of his daughters also survived him. He had published five editions of his celebrated “ Commentaries on American Law,” and disposed of them, so that none of them remained on hand.

On the 16th of November, 1847, he made three separate contracts with printers; for printing the four volumes of that work, one to print two volumes, and each of the others, one. He also, on the same day, contracted with a paper manufacturer for all the paper for the four volumes. At his death, parts of the 1st, 2d and 4th volumes were printed, but no part of the 3d volume. The four volumes were printed and published in May, 1848 ; and then the copyright for the 6th edition was taken out by William Kent, in his own name. He sold a considerable part of the edition, and has in his hands, $3,068,77, after paying all expenses, and also some unsold copies of this edition.

The plaintiff claims that this edition passed under the sixth clause of the will. William Kent, who is executor, resists this claim, and insists (though it is against his own interest to do so,) that it passes under the eighth clause.

The counsel for the plaintiff urges that it must be assumed that one so distinguished as the testator, would use language according to its strict meaning, and with great exactness. A young and inexperienced person, probably, studies more the literal meaning of words, than one long accustomed to the interpretation of instruments. The latter is daily compelled to discover the true meaning of others, by examining the whole scope of what they have said or written, and may thus be content in his own writing, if the whole scope of it be clear, without regard to the precision which a student would aim at. That precision, too, is more likely to be found among conveyancers than among either counsel or judges. So in this will, the testator begins by giving to his wife, for life, the use of all his estate, real and personal, and, as if to show that he meant it to be without exception, he declares that his object in this, is to leave her as completely independent in her income as he is ; yet, in the next clause, he gives to his son William Kent in fee, nearly all of the farm near the Summit, in New-Jersey, and all the furniture, carriages and moveable property on it. - Also, all his books and manuscripts of every kind, constituting his library, and Ms vault. He also gives to Ms daughter, Mrs. Hone, his pew in Calvary church, and to Mrs. Stone, the rest of the farm, in Hew-Jersey; and in the seventh clause, gives to Mrs. Hone $>1,000, as an equivalent for the farm devised to Mrs. Stone. It would be somewhat doubtful whether these gifts were not subject to the widow’s life estate. A careful young lawyer would probably have anticipated such a doubt, and changed the phraseology so as to prevent it. One more experienced, might be content to see that a fair interpretation of the will would remove any doubt. When the bequests were intended to be subject to the life estate of the widow, the testator so expressed himself, as in the fifth clause, where he gives his daughters a limited choice of the furniture, but “ subject to their mother’s life estate therein;” and in the eighth clause, where he gives Ms residuary estate, “ subject always to the life estate of my dear wife as aforesaid.”

This reference to other parts of the will, is important only, to show that this will is to be interpreted as all others — by the intention as gathered from the whole; and not by the meaning of words, that would result from then* derivation.

In the sixth clause the testator gives to his son, William Kent, his Commentaries on American Law, with the right of renewal of all previous and future editions, and all other rights and privileges appertaining to the copyright, and to so much of the then existing edition, as may remain unsold at his death. He adds: “ but I hereby charge upon this bequest of the copyright, one half of the net profits arising after my death from the sales thereof, after deducting all expenses of printing and •publishing future editions, and all other expenses appertaining to the custody, care and sale of the Commentaries, to be held by my son during the existence of the copyright, for the separate use of Mrs. Hone and Mrs. Stone.” He gives the reason for mating this disposition, and it aids very much in determining the extent of the gift. I't is, that he deems it advisable that Ms son should have the legal right and title, and exclusive control in his discretion of the copyright, and of the future editions thereof, and of the corrections, additions and improvements, to be from time to time made to the said Commentaries, and as some compensation for Ms trouble, labor and responsibility in respect to the same, that he and his legal representatives should have to their own use, the remaining half of the net profits of the future editions and sales of the Commentaries.

The testator knew the value of the work which has spread his name through his native country, and given him a deserved reputation abroad; he was naturally desirous of preserving both its high character, and its value as property, and knew that for this purpose, as successive editions would be called for, they must conform to the successive changes in the law. For this reason he selected an editor whose reputation as a judge, and as a lawyer, were such as to secure undiminished confidence on the part of the public, in the accuracy and learning of the book; and whose close relationship would make him feel his own fame identified with that of the testator. He was to have the exclusive control of the copyright, and of the future editions, and of the corrections, additions and improvements, to be from time to time made to the Commentaries : and it was as some compensation for his trouble, labor and responsibility, in respect to the same, that he was to have half the net profits. It follows, then, that where he had not the exclusive control of an edition, and no control over the corrections, additions and improvements to be made to it, and no trouble, labor or responsibility, in respect to those corrections, additions and improvements, he had not earned the compensation allowed for those peculiar services, and was not to receive it. In this case, the testator had made all the corrections, additions and improvements to the edition, and had assumed not only all the trouble, labor and responsibility, in respect to these services, but the trouble, labor and pecuniary responsibility, also, of completing all the contracts for the publication of the 6th edition. With the light thus shed by the testator, on his own meaning, it is not difficult to understand what was intended to be given by this sixth clause. But he is his own expositor again; after making the bequest he says : “ I charge upon this bequest of the copyright of my Commentaries,” showing that all he meant to give was the mere copyright, or the right to the son to cause to be published. Here the testator had exercised that right as to the 6th edition: he had caused it to be published, so far that the work must be completed, or his estate buy off the contractors to abandon the work which they had commenced.

When in the beginning of this clause, he gives to his son the Commentaries, with the right of renewal of all previous and future editions, it is plain he means to give the bare copyright. The term renewal would be inapplicable to any other right, and is peculiarly appropriate to that right. The addition, “ and all other rights and privileges appertaining to the copyright,” shows again that the mere copyright was the principal gift, and anything connected with the gift was connected only as an incident to the copyright. The testator, in order to include every possible incident of a copyright, adds “ rights and privileges appertaining to the copyright, and to so much of the then existing edition as may remain unsold;” that is, rights of publication appertaining to that edition. He did not mean to give the books themselves, or any interest or title in the edition existing at his death, (except to republish them); for in the eighth, which is the residuary clause, he expressly gives all il unsold Commentaries on hand,” to his residuary legatees.

The gift to the son, of the mere copyright, with the statement that the donee was to make corrections, additions and improvements in the work, and was to have the labor, trouble and responsibility in respect to the same, and the express gift to others, of all unsold copies of the work on hand, make it sufficiently clear that this edition, which the testator had himself edited, and contracted to have published, could not be included in the gift to the son. The claim of the plaintiff is as a specific legatee: she must show that this particular property was in contemplation of the testator when he made the will, or within his clear meaning. If that can not be established, she can not take it, but it must pass to his residuary legatees, who take all that is not specifically bequeathed. It is probable that he did not contemplate such a state of things as has occurred; and if his will has not provided for it in this sixth clause, it has in the general disposition made in the residuary clause. If the words “ unsold volumes on hand,” used in the residuary clause, do not include this edition, the words “ the residue of my estate, real and personal,” do. It is not material, therefore, to inquire whether these unfinished volumes could be called “ unsold volumes on hand,” or not

[New-York General Term, June 14, 1851.

Edmonds, Edwards and Mitchell, Justices.]

The judgment should be reversed, but without costs ; and a judgment entered declaring that the net proceeds of this 6th edition, are to pass under the eighth clause of the will.