dissenting.
{17} This appeal decides the fate of litigation that may significantly affect Jan Kerouac’s (Decedent’s) rights concerning the literary works of her,father, Jack Kerouac. I respectfully dissent because I do not agree with the majority’s refusal to recognize the Literary Personal Representative’s authority to act within the separate domain established for him in Decedent’s First Codicil to her Last Will and Testament.
{18} The relationship of Decedent to her father and his literary works can not be understated. Jack Kerouac was a prominent figure in the “beat” counterculture who authored 18 or more books, including the legendary On the Road. He was considered an icon of the “Beat Generation.” Decedent also was an author in her own right. Her main source of income was from book royalties, including royalties for certain works of her father. Upon her death, and in accordance with the provisions of the First Codicil to her Last Will and Testament, her ex-husband was appointed to serve as General Personal Representative and her literary agent was appointed to serve as Literary Personal Representative of her estate. The Literary Personal Representative is the author of Memory Babe: A Critical Biography of Jack Kerouac and is considered an expert on the works of Jack Kerouac. The Literary Personal Representative also possessed experience as an author, teacher, lecturer, editor and literary agent. The present appeal arises from the General Personal Representative’s efforts to unilaterally dismiss litigation in Florida without the Literary Personal Representative’s knowledge or consent.
{19} The effect of such a dismissal will be to abandon any rights that Decedent’s estate may have in certain literary property that once belonged to Jack Kerouac, including significant royalties. According to the Literary Personal Representative, the literary materials at stake in the Florida litigation are being sold piecemeal to various collectors, thus defeating Decedent’s intent to preserve the integrity of her father’s literary estate for future scholarship.
{20} To allow the General Personal Representative to unilaterally dismiss the Florida litigation is contrary to Decedent’s intent as expressed in her will and codicil. Further, it renders the Literary Personal Representative unable to effectively administer the estate’s rights to literary property, an area in which he possesses particular expertise.
{21} The Probate Code recognizes that a will or codicil may place restrictions on the authority of personal representatives. See NMSA 1978, § 45-3-715(A) (1995). This practice is consistent with the principle that:
the power of an executor may be limited as to the subject-matter upon which it is to be exercised. Thus, the testator may make A. his executor for his plate and household stuff, B. for his sheep and cattle, C. for his leases and estates by extent, and D. for his debts due to him. So a person may be made executor for one particular thing only, as touching such a statute or bond, and no more. And the same will may contain the appointment of one executor for general, and another for limited purposes.
1 Sir Edward Vaughan Williams et al., A Treatise on the Law of Executors and Administrators 291 (6th Am. ed. 1877) (footnotes omitted); see also In re Will of Rubin, 143 Misc.2d 303, 540 N.Y.S.2d 944, 945 (Sur.Ct.1989) (recognizing right of testator to limit, qualify, or condition authority granted to his fiduciary as to subject matter, such that one executor may be given exclusive authority over a particular group of assets); In re Battlett’s Estate, 198 Misc. 1000, 101 N.Y.S.2d 675, 676 (Sup.Ct.1950) (while there is no such thing as “literary executor” under New York law, a person may be designated as executor solely for purpose of administering literary property).
{22} In this case, the provision in Decedent’s codicil “concerning any rights that [she] now possesses] or may hereafter possess in any literary works or literary archival materials” is a valid restriction on the General Personal Representative’s authority. In ascertaining Decedent’s intent, we cannot disregard this restriction and isolate other provisions in the will or codicil such as those which authorize the Literary Personal Representative to make decisions about “the appropriate publication, republication, sale, license or any other exploitation [of] literary works or materials.” We must read each part in the context of the testamentary instrument as a whole. See New Mexico Boys Ranch, Inc. v. Hanvey, 97 N.M. 771, 773, 643 P.2d 857, 859 (1982); In re Will of McDowell, 81 N.M. 562, 563, 469 P.2d 711, 712 (1970).
{23} Reading the will and codicil as a whole and applying relevant provisions of the Probate Code, the only logical conclusion is that, within each of their respective domains, each personal representative has those powers which are necessary for him to carry out the purposes of Decedent’s will and his duties thereunder. See generally §§ 45-3-711, -715, -720; cf. City Bank & Trust Co. v. Morrissey, 118 Ill.App.3d 640, 73 Ill.Dec. 946, 454 N.E.2d 1195, 1199 (Ill.App.Ct.1983) (trustee will take whatever legal estate is necessary for him to carry out the purposes of testamentary trust and his duties thereunder); Rentz v. Polk, 267 S.C. 359, 228 S.E.2d 106, 108 (S.C.1976) (where testamentary trust gave trustee power to borrow, rent, invest, and collect income with expectation that assets increase in value, it would be impossible for trustee to perform duties imposed upon her unless she had legal title to trust property).
{24} The majority’s decision today effectively denies the Literary Personal Representative any powers with respect to the Florida litigation on the basis of an arcane distinction between a cause of action and a remedy. This ignores both Decedent’s intent to restrict the General Personal Representative’s authority to non-literary property and the practical aspects of administering a literary estate. As one scholar notes,
the estate of a[ ] [famous] author is ... likely to consist of a mass of intangible rights, contracts, rights to receive royalties and other income, rights to exercise artistic control and business control, merchandising rights and the like. All of these require active management, exploitation, unity of purpose in management and constant police work to maximize their value.... A cumbersome division of the rights into competitive shares will substantially reduce their value.
Allen H. Arrow, Estate Planning Problems of Authors, Performers, and Other Creative Persons, 9 Univ. of Miami Inst, on Estate Planning ¶ 1709, at 17-14 (1975); see also In re Estate of Hellman, 134 Misc.2d 525, 511 N.Y.S.2d 485, 488 (Sur.Ct.1987) (giving effect to testator’s intent that her rights in literary property “be handled in a unified, expert and appropriate manner”); Cym H. Lowell & Terry R. Abel, Estate Planning for the Instantly Wealthy Including Resident and Non-Resident Aliens, 23 Univ. of Miami Inst, on Estate Planning ¶ 1602.5, at 16-15 to 16-16 (1989) (“The ongoing monitoring of rights pursuant to copyright laws, handling intangible assets and enforcing merchandising and contractual rights may well necessitate a unity of action.”).
{25} I fear that the majority’s distinction between a cause of action and a remedy will result in a cumbersome division of authority between the two personal representatives in this case, one who possesses the requisite expertise to administer literary assets, one who does not. Such a cumbersome division would be contrary to the provision in Decedent’s codicil which assigns the Literary Personal Representative the task of “fostering economic return without devaluing or cheapening the literary works or any intellectual property rights flowing therefrom, or in any way reflecting negatively on me, my father, or my heirs or beneficiaries .” For these reasons, I must respectfully dissent.