The late Chancellor Kent, on the 22d day of August, 1846, made and published his last will and testament in due form of law, to pass real and personal estate, and on the twelfth day of 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 only heirs at law. *Page 392 Several grandchildren and great-grandchildren also survived him. On the 24th day of December, 1847, said will was duly proved and probate granted before the surrogate of New-York, and letters testamentary granted to the defendant, William Kent, as executor thereof.
The deceased was the author, and proprietor of the copy right, 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 his said book on hand in his possession.
On the 16th day of November, 1847, the deceased contracted for the necessary paper on which to print a sixth edition of his said book, and contracted with one person for the printing of the first and third volumes, with another for the printing of the second volume, and with a third person for the printing of the fourth volume of such edition, and on the following day the printing of said sixth edition was commenced pursuant to said contracts, but neither of the four volumes of said 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 was printed at the time of his decease. The printing of the work was continued by said printers after the death of the testator, and was finished in May, 1848, when this edition was first published, by William Kent, and a copy right of said edition taken out by him in his own name as proprietor thereof, and subsequently he proceeded to sell and dispose of the same, and after reimbursing the expenses of printing and publishing said edition, there remained in his hands a surplus of $4068,77; with a considerable number of copies of said commentaries of that edition unsold, and also some moneys due and uncollected for copies sold by him. The question presented in this case for determination, is, 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 is as follows: "Sixthly. I give and bequeath *Page 393 "to my dear son, William Kent, my `Commentaries 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 copy right, 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 copy right 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 copy "right, 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 copy right 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 said will which is supposed to affect the question under consideration is as follows: "Eighthly, "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, and household furniture in New-York, *Page 394 "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:
"First, one equal undivided third part thereof to my said son "William Kent, his heirs, executors and administrators. Second, "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. "Third," [a like disposition of the remaining third, for the use of Mrs. Stone and her issue.]
Before the time when the testator made his will, he 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 copy right, in fact published the edition so commenced, for which he took out a copy right as proprietor.
I think it plain, 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 *Page 395 "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 copy right, 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 by that clause to disturb or displace any bequest or provision previously made by the will. The property in this edition clearly did not pass to the residuary legatees 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 copy right bequeathed to him, by the sixth clause of the will, William Kent published this edition, for which he took out a copy right in his own name as the proprietor of the *Page 396 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.
RUGGLES, Ch. J., and GARDINER, JOHNSON, EDMONDS and WELLES, Js., concurred in the foregoing opinion.
WATSON and GRIDLEY, Js., gave no opinion.
Judgment reversed. *Page 397