
    Hone v. Kent et al.
    
    
      Bequest of literary property.
    
    The bequest of the copyright of a hook, “ with the right of renewal of ah previous and future editions,” passes an edition in press at the time of the testator’s death ; it does not go to the residuary legatees, with the unsold copies, specified as part of the residue.
    Hone v. Kent, 11 Barb. 315, reversed.
    Appeal from the general term of the Supreme Court, in the first district, where a judgment for the plaintiff, entered upon the report of a referee, had been reversed. (Reported below, 11 Barb. 315.)
    This was a suit brought by Eliza Hone, wife of Isaac S. Hone, and one of the daughters of the late Chancellor Kent, against the next of kin, and the executor of the decedent, to obtain a construction of certain clauses of his will, disposing of his “Commentaries on American Law,” including the copyright and unsold copies on hand.
    391 ] *The late Chancellor Kent, on the 22d August 1846, made and published his last will and testament, in due form of law to pass real and personal estate, and on the 12th December 1847, died, leaving it in full force, and leaving a widow, one son, William Kent, two daughters, Mrs. Hone, the plaintiff, and Mrs. Stone, his * oqo t °nly heirs-at-law; ^several grandchildren and y^ 1 great-grandchildren also survived him. On the 24th December 1847, the will was duly proved, before the surrogate of New York, and letters testamentary were .granted to the defendant, William Kent, as executor thereof.
    
      The deceased was the author, and proprietor of the copyright, of the “ Commentaries on American Law,” in four volumes, called “Kent’s Commentaries,” whereof five editions had been published by him, at different periods, during his life, and disposed of, so that, at the time of his death, there were no copies of the book on hand in his possession.
    On the 16th of November 1847, the decedent contracted for the necessary paper on which to print a sixth edition of his book; he contracted with one person for the printing of the first and third volumes, with another, for the printing of the second volume, and a third person, for the printing of the fourth volume of such edition ; and on the following day, the printing of the said sixth edition was commenced, pursuant to such contracts, but neither of the four volumes of that edition was finished or published, during the lifetime of the deceased. A part of the first, second and fourth volumes was printed, but no part of the third volume, at the time of his decease. The printing of the work was continued, after the death of the testator, and finished in May 1848, when this edition was first published, by William Kent, and a copyright thereof taken out by him, in his own name, as proprietor thereof; he subsequently proceeded to sell and dispose of the same, and after reimbursing the expenses of printing and publishing such edition, there remained in his hands a surplus of $4068.77; with a considerable number of copies of that edition unsold, and also some moneys due and uncollected for copies sold by him. The question presented for determination, was, whether the sixth edition of the “Commentaries on American Law,” passed under the sixth, or under the eighth clause, of the will of the testator.
    The sixth clause was as follows: “ I give and bequeath *to my dear son, William Kent, my ‘ Commen- ^ taries on American Law,’ four volumes, to him, *- his executors, administrators and assigns, and with the right of renewal of all previous and future editions, according to law, and all other rights and privileges appertaining to the copyright, and to so much of the then existing edition as may remain unsold at my death. But I hereby charge upon this bequest of the copyright of my commentaries, one moiety or half part of the net proceeds or 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 said son and his lawful representatives, during the existence of the copyright, in trust, for the sole use and benefit of my two daughters, Eliza Hone and Mary Stone, and their respective lawful representatives, the one-fourth part of such net proceeds and profits to be paid to each of my said daughters, while remaining married, into their own hands, and upon their own receipts, free from the control,' disposition or debts of their husbands, respectively. My reason for making this disposition of my commentaries is, that I deem it advisable, that my son should have the legal right and title, and exclusive control, in his discretion, of the copyright of my commentaries, 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 his trouble, labor and responsibility in respect to the same, that he and his legal representatives should have and retain to his and their sole use and benefit the remaining moiety or half part of the net proceeds and profits of the future editions and sales of the commentaries.”
    That part of the eighth clause of the will which was supposed to affect the question under consideration was as follows: “ The residue of my estate, real and personal, consisting principally of my house and lot at number twenty-six, Union Square, in New York, and of stocks, bonds and mortgage, notes, unsold commentaries on hand, 
      [*394 and household-furniture in Hew York, *beyond what is herein before specially bequeathed, money in bank, &c., I hereby give, devise and bequeath (subject always to the life-estate of my dear wife, as aforesaid) as follows, viz.:
    “1. One equal undivided third part thereof to my said son, William Kent, his heirs, executors and administrators. 2. One other equal undivided third part thereof to my said son, William Kent, in trust for the sole and separate use of my daughter Eliza Hone, during the joint lives of herself and her husband, the net dividends thereof, income, interests, rents and profits of the same, to be paid to my said daughter, Eliza, free from the debts, control or disposition of her husband, and upon her separate receipts; and in case of her surviving her husband, then the principal and interest of her third part aforesaid to be transferred to her; in case her husband survives her, the principal and interest and income thereof remaining unpaid to her, to be transferred to her lawful issue, and the legal representatives of such issue, as the case may be.” 3. A like disposition of' the remaining third, for the use of Mrs. Stone and her issue.
    Befoie the making of his will, the testator had published the fifth edition of his commentaries; some part of which, at that time, was on hand, but in the course of the year following, had become exhausted by sales, and he had then, shortly before his death, contemplated, and made preparation for publishing a sixth edition; which was unexecuted at the time of his death. It had not then been published, although the printing of the work, for which the testator had contracted, had been commenced and considerable progress therein made. Several months after the death of the testator, William Kent, the legatee of the copyright, in fact, published the edition so commenced, for which he took out a copyright as proprietor.
    
      It was claimed by the plaintiff, that the net proceeds of the sixth edition of the commentaries, the printing of which "had been commenced before the decease of the testator, were disposed of by the sixth clause of the will, giving one-half thereof to the defendant, William Kent, for his own use, and the other half in trust for the use of the plaintiff and her sister (Mrs. Stone) in equal parts. The defendant, William Kent, as executor of the will and trustee, under the residuary clause thereof, for the infant children and grandchildren of his sisters, insisted, that it was his duty, as such executor and trustee, to invest the surplus proceeds of the said sixth edition, and to pay the income thereof to the widow of the testator, during her life, and after her decease, to pay one-third part of such income to each of his sisters, during their respective covertures, and the principal of such part to such sisters, respectively, should they survive their husbands, and to their children, respectively, should their husbands survive them, according to the directions of the eighth clause of the will; and that the proceeds of all future editions would be governed by the sixth clause. The widow, in her answer, relinquished- her interest for life in the work, in case it should be held that she was entitled to such interest, to the end that the proceeds might be divided in accordance with the sixth clause of the will, in the same manner as if she had no life-estate therein.
    The referee before whom the cause was tried reported a judgment in favor of the plaintiffs, directing a disposition of the proceeds of the sixth edition of the Commentaries in accordance with the provisions of the sixth clause of the will. The judgment entered on the report was, however, reversed at general term, and a new trial ordered before the referee; whereupon, the plaintiff took this appeal
    
      
      Anthon, for the appellant.
    
      O'Conor, for the respondents.
   Jewett, J.

(after stating the facts.) — I think it plain, [*395 if this edition of the commentaries of the deceased is not comprehended in the words, “ unsold commentaries on hand,” used in the eighth clause of his will, it is not included in that clause. In order to include it in the words “ the residue of my estate *real and personal,” I think it material, that it should have been published in the lifetime of the testator. His determination and preparation to publish the edition, without publication, could not constitute it a portion of his estate.

It may be, that the materials procured by the testator necessary for the publication, constituted a portion of the residue of his personal estate, but that is not a question to be determined on this occasion. The only question for our decision is, whether the sixth edition of the commentaries, produced under the circumstances stated, passed to the residuary legatees, under the eighth clause of the testator’s will, or whether it must be deemed an edition future to the death of the testator, published by his legatee of the copyright, in pursuance of the right of publishing future editions of that celebrated work, as bequeathed to him under the sixth clause of said will.

In my opinion, there is no just ground to conclude that this edition, in the condition in which it was found at the time of the death of the testator, is included within the words or meaning of the eighth clause of the will. By that clause, nothing is proposed to be disposed of, except such property of the testator as remained,- beyond what was therein before specially bequeathed; not even “ unsold commentaries on hand.” It was not designed b1' that clause, to disturb or displace any bequest or provision previously m^de by the will. The property in this edition clearly did not pass to the resi- . duary legatee, as “ unsold commentaries on hand,” for it had no existence, as such, at the death of the testator; nor did it form any part of the residue of the testator’s estate at his death. The contracts made by the testator in his lifetime, for publishing the edition of his commentaries in question, although in part executed, did not constitute it an edition; nothing short of a publication could have that effect. An edition of a book, is the publication of it. That did not take place until several weeks after the decease of the testator; and then, under and by virtue of the copyright bequeathed to him, by the sixth clause of the will, William Kent published this edition, for which he took out a copyright in * 396 1 own name> as the proprietor of the *work.- -* I think, that he was fully authorized so to do, under the bequest to him, and that it became a future edition, within the meaning of the sixth clause of the will, and the avails subject to be disposed of as therein provided.

The judgment of the supreme court should be reversed, and the judgment’ rendered on the report of the referee affirmed.

Judgment reversed, and that entered on the report of the referee affirmed.  