University of Virginia Library

Problems of Literary Executorship
by
Norman Holmes Pearson [*]

The creation of a literary executor spawns difficulties, but for the literary executor himself one problem comes first. It is not simply that he will be doomed to anonymity. Literary historians, though they frequently owe a debt to literary executors, seldom mention them. But literary executors are not always forgotten, as in the case of the triumvirate who acted as trustees for the Boswell papers, or that of the Rev. Dr. Rufus Wilmot Griswold who became infamous as the posthumous bedeviler of Edgar Allan Poe. Among shades like these the literary executor may hope to seek his modest immortality. This is the hope of a future existence. Yet the chief problem for the practising literary executor is that only too often he faces the actuality of a present non-existence.

The typical last will and testament of a writer mentions specifically the person or persons to whose care he entrusts the disposition and use of his literary remains. Realizing that there will still be unpublished manuscripts after his decease, as well as correspondence and other personal material relating to his career, and recognizing—even hoping for—biographical and critical studies dependent on these, the writer looking toward posterity relies on a designated literary executor to be responsible and loyal to his memory. Since such a literary executor should be skilled as well as sympathetic, the proper person for the task is not always to be found in the immediate family of the writer or among his heirs. Too much is at stake for the nomination to be made carelessly. Normally he will search among his friends for the right one; sometimes he will turn to an acquaintance.

A typical designation of a literary executor is that made by Mrs. Edith Wharton in her will, which reads:

A responsibility has been created in such an instance, but not a legal existence. Under this or any similar nomination there is no such thing at law as a literary executor. Under such circumstances he has no legal standing, he does not execute, and he has no powers. Literary remains are property, and are merely one part—though frequently a chief part—of the total property of the estate. As such, literary remains can be executed only by the true executors of the estate. At best the "literary executor"—to use that improper terminology, when he is not fully empowered as an executor—exists only in an advisory capacity. He may, as an expert both in literary problems and the wishes of the deceased, help the executors or beneficiaries in the disposition of the property concerned. But if the executors or heirs are, for one reason or another, unfriendly to the nominee, they may disregard him entirely and act toward the shadow of a wish as though he were merely a shadow. The fact that he has been designated in the will is not irrelevant but it is not binding.

This situation is a matter of considerable surprise to many writers who may already have appointed or are contemplating the appointment of a literary executor on terms similar to those by which Mrs. Wharton named Gaillard Lapsley. It may also be, though hardly in her case, a matter of potential danger. For the writer is not always given the protection after death, which he thinks he has ensured. It is also a matter of significance to scholars and to institutions. What it means is that no literary executor of this type can himself give legal permission either for the use of or disposition of literary property, but that such legal permission for use or such legal deed of gift can be obtained only from the true executors or the beneficiaries of the estate, whose interests may be financially or otherwise affected.

There is more than idle possibility of difference of opinion between a literary executor and others concerned with the estate. The gift of literary remains to an institution may, though it ultimately benefits the reputation of the writer, deprive the residual estate of immediate financial benefits possibly to be derived from their sale. The appropriate disposition of material of a sensational nature is another case in possible issue. Even the matter of using non-sensational material may occasion dispute, as in the instance of a choice among applicants for the privilege of writing a biography. Or one might cite, as specifically representative of more general problems, an instance in which some well-known dramatist might leave among his papers a manuscript play which has purposely remained unproduced and unpublished. There are various and understandable reasons for such a postponement: the play might have seemed to be of a too personal though non-sensational nature, or the author might simply but shrewdly have been moved by the possibility of providing an inheritance

without undue burden of taxation. If the literary executor held final powers in himself, he might decide (a) that the prestige given by an eventual first production would be of immeasurable help to some little theatre or theatrical festival in which the dramatist had been or might have been interested; or (b) that the artistic prestige of the playwright required its initial production by a distinguished theatrical company but at lower financial returns than other companies would offer; or (c) that the spectacular fees from Hollywood or the television studios would, despite the necessary temporary revisions of the script, more than compensate for artistic considerations. But in this case as in others easy to conjecture, the ordinarily designated literary executor cannot decide; he can only advise, and have for his slender consolation the fact that because he has no legal existence he cannot be sued either for damages or in restraint of action.

There are other potential problems affected by his legal status or lack of it. In the case of Mrs. Wharton's will, she mentioned specifically that her literary executor was "to carry out this task in accordance with instructions left by me in my papers." Precisely what those instructions were I do not know, but one can assume their nature from the instructions which accompanied the gift of her papers to the Yale University Library. These read:

There is no question as to Mrs. Wharton's intent. She felt that the facts of her life would be of interest to the future, and that they might be of altogether too much interest to the present. Yet since these wishes were not apparently a part of the actual will but existed only in a supplementary letter of instruction, they were in no way legally binding either on the true executors or the heirs, and might therefore have been ignored. Under certain circumstances, financial or otherwise, even the worthiest efforts of a non-implemented literary executor might have been fruitless.

In instances where there have been instructions for the destruction of manuscripts, or the prevention of their publication, whether permanently or for a limited period, only a specific clause in the will to that effect would have made the instructions legally binding. There are of course numerous instances where a decision has been necessary. Emily Dickinson's sister, Lavinia, destroyed most of her sister's correspondence immediately after her death, believing this to be her sister's wish. Somewhat later, however, she found large quantities of poems, and made every effort to preserve these and arrange for their publication. Edward Taylor, the American poet who died in 1729, is said in Sibley's Biographical

Sketches of Graduates of Harvard University—there is no documentary instruction—to have given "orders that his heirs should never publish any of his writings," although Taylor obviously did not call for the destruction of the manuscripts themselves. Eventually in 1937 these were in part published, but only after the legal opinion was given that "there is no present legal force to such an instruction if it existed, and that if the University lawfully possesses these manuscripts the instruction does not legally interfere with their publication." "Personally," the legal counsel continued, "I can see no moral obligations after such a lapse of time." The moral situation is obvious; the legal situation has perhaps been helped by the passage of time. Franz Kafka left instructions to Max Brod, his literary executor, that his unfinished novels were to be destroyed. They were not; and if on publication these did not seem to be Kafka's masterpieces, they are at least cherished. Perhaps the most intriguing solution of a problem in this category was that made in the case of a nineteenth-century literary figure who left instructions that his manuscripts were to be destroyed. Among his papers was much unpublished writing of obvious merit. What in fact happened was that the heirs made copies of all these papers and then burned the originals. One can sympathize with the heirs and be grateful to them, but one does not know whether the author's wish was revealed orally, by written letter of instruction, or by a clause in the will. It might have made a difference to everyone, even to the deceased. I can sympathize also with the heirs of a well-known writer, still living, who has made it clear that he wishes no biography of himself. But since, as Serge Koussevitzky discovered, biographies cannot be prevented even in lifetime (though biographical novels may be regarded as invasions of privacy), biographies of this writer will certainly be written. Are these heirs to help to make these inevitable biographies as accurate as possible by their assistance, or are they, following his wish, to permit the biographers to proceed in darkness? Sometimes there appear to be considerations beyond the particular quirks or even the modesty of the deceased. But at least it should be evident that the writer who wishes to enforce his own intentions on the future may not always be able to do so through the simple nomination of an instructed literary executor, or at best to do so only within limits. For all decisions must be confirmed by the estate or heirs, under the limitations binding the average literary executor. The literary executor who is only that, can demand nothing (not even the sight of documents) as by his right, and he exists only by courtesy.

It is possible, however, for a writer to act more definitively than he usually does, by eliminating the distinction between the "literary executor" and the other or true executors, or between him and the heirs. He

may, for example, in order to effect the latter solution, make the literary executor a beneficiary by bequeathing to him the physical possession of properly defined literary remains, with powers to use them at his discretion. This may be done with or without giving this beneficiary the financial proceeds from the copyright aspects of the remains. But the literary executor whose physical property the papers now under these circumstances become, and to whom access to the papers cannot be denied (as is otherwise possible), can as their owner dispose of this physical property as he may choose, or permit their publication by right of the directive phrase: "at his discretion." The revenue from publication may flow to other heirs, but such a legal right obviates any discussion over the appropriateness of the financial returns. It will not, of course, remove the possibility of controversy or suit in relation to the possibility of libel, for which the literary executor under these circumstances may be sued if libel against any living person, including descendents, can be proved to result from publication.

An alternative solution, in order to effect the elimination of the distinction between literary executor and true executor, would be to designate as a co-executor of the estate—that is, not simply as literary executor—someone whose particular forte is his knowledge of literary affairs. He will then be, so to speak, a specialist on an executive board, but one endowed with the fullest powers possible to any single executor. The limitation or definition of the powers of any individual executor may vary from state to state, but in any instance far more than merely advisory power will be given. There are certain pleasant or appropriate advantages to such an arrangement which go beyond the question of power, for by this procedure one can ensure to the literary executor the compensation normally received for executorial duties. It should be remembered, however, that such a full executorial appointment gives, in many instances, powers over matters beyond the purely literary, and warning might be taken if there are dangers in too celibate a literary skill unwedded to other capabilities. Sinclair Lewis was certainly aware of the fact that though he chose a poet as one of his true executors, the poet was also a lawyer and a member of the firm which handled his legal affairs. But in any event, or at least not uncommonly, even when the literary executor becomes a true executor, he will if there are other executors have only one vote in decisions; and although "one on the side of the Lord" may, as idealists used to repeat, be "a divine majority," more mundane decisions are not made in this fashion. Nothing has been ensured definitively. The independent decision of a specialist on literary matters may be irresistible but is not of itself always final.

An interesting recognition both of the powers and the limitations in

respect to a future situation is to be found in the will of Miss Willa Cather, the seventh paragraph of which reads as follows: Miss Cather was a woman of public reticence and of strong will. Like Mrs. Wharton she wished to avoid any public viewing of herself, but Miss Cather's will recognizes certain difficulties in regard to the future. This difficulty is indicated in the shift from her initial "I direct" to the second and precatory "I earnestly request." For when by the renewal of copy-rights the title to her literary properties rests with the legatees or distributees, or when the property rights to both paper and words rest squarely in them, theirs is the right to say what is done with this property, and theirs is the decision as to whether her "earnest request" is to be respected. The future must make its own decisions. All Miss Cather could do was to make the future as remote as possible.

The way of a properly designated executor is comparatively sure; but the average "literary executor" can follow the path only by courtesy extended to him. Yet, fortunately, such courtesy is common. If the law is against him, ordinary practice is for him. Both the true executors and the heirs are customarily only too willing to place the burden of judgment, and frequently what is tantamount to responsibility for its exercise, upon the one named in the will to carry out such matters. The literary executor may not in many instances have any legal status, but he has an immense moral responsibility both to the living and to the dead. In most instances, except when he is a true executor, he receives no fee. Yet because

he has an occupation of his own, the time and thought which he must spend as literary executor is at the expense either of his occupation or his leisure. What he does, he does willingly; but it is under a handicap.

Since the chief concern of the deceased was usually his writing, the literary executor takes on as his side-line what is the virtual administration of some one else's chief line. The literary papers must be gone over and put into order. This in itself can be a full-time occupation for many months. Titles and copyrights ought to be put into order also, often when there are no funds for clerical or legal assistance. Most of all there is the writer's literary reputation to be preserved and enhanced. There is always the question of posthumous publication: whether it should be made, when it should be made, and how it can be made. There are critical articles and studies to be encouraged. Happily, these will, as in the case of F. Scott Fitzgerald, result in the achievement of a stature never known in the writer's own lifetime. The writer's miscellaneous published works ought to be brought together and made generally available. The Collected Poems of John Peale Bishop and The Collected Essays of John Peale Bishop were the consequence of literary executorship. The critical essays published on him after his death, as well as the reviews of the collections just mentioned, were not only tributes but services. They helped to establish the public memory of him. Gertrude Stein never enjoyed the critical interest in her lifetime which her work is now beginning to receive. After establishing the portrait of her magnetic character, an emphasis is now being made on the substance of her work. The result is not an accident, and it is not a miracle. Nor is it undeserved, but time is being helped.

There is also the problem for the literary executor of the proper biography which most, though not all, writers both yearn for and expect. It is not a question of "first come, first served," as many enthusiastic suitors are unhappily surprised to discover. But it is not always appropriate for the literary executor to wait. One recalls the unfortunate consequences for Herman Melville. The privilege promised by Mrs. Melville to a friend was never accomplished; then the enthusiasm of another and younger man waned; other subsequent attempts were never carried through. Perhaps it might be argued that in Melville's case the resultant mystery helped. The normal literary executor of the normal literary writer could hardly, however, be expected to count on this; and the past is full of anonymous shades.

Finally, because death will come for the literary executor too, and perhaps because having no existence he cannot appoint a successor to himself, there is the problem of the eventual disposition of the actual papers in such a way that both the writer and the public will best be served

in the limitless years which stretch ahead. All these tasks of the literary executor are not thankless ones, but they are considerable.

The mass of papers, literary manuscripts and other memorabilia which the average writer leaves among his remains is formidable. One can suggest many reasons why this problem should be an increasing one. The painstaking collection and analysis of literary documents of the past has, on the part of scholars, pointed up the value of such material, and has led writers to the day-by-day preservation of documents whose importance is constantly emphasized to them by collectors, scholars, and the alluring examples of book catalogues and auction records. Any writer is likely to regard himself not only as a Boswell but his heirs like Boswell's. Thus not only final manuscripts and literary correspondences have been saved, but, because of the interest in the study of the creative process, early notes and drafts are preserved which might once have been destroyed as no longer useful to the writer. The careful study by scholars of every scrap referring to biographical incidents or family influences, as well as an increasing lack of reticence on the part of writers and scholars, have led to the preservation of certain categories of documentation beyond perhaps even the consequences of the natural instinct of anyone to squirrel away souvenirs of the past. The waste-basket has been replaced by the literary muniment-room.

A letter from Hervey Allen, written to me very shortly before his death, gives some idea of what his literary executor must have faced. "Actually," he wrote, "my problem is quite a complex one."

Hervey Allen was unusually methodical, and in many ways was his own literary executor, doing himself what anyone else, without the advantage of his intimate knowledge of himself, would have been forced to do for him. Most writers are not so methodical, but their problems are similarly complex and ultimately compelling. Normally there are left, for the literary executor, simply crammed trunks, paper cartons in corners of attics, or miscellany in incredible closets like that which William Rose Benét used to refer to as his "glory hole." The papers of Alfred Stieglitz contained over fifty thousand items from more than ten thousand correspondents. The letters to Gertrude Stein now occupy eight well-filled drawers of filing cabinets; no one has ever had time to count them. Her literary manuscripts occupy shelf upon library shelf of black boxes. The papers of Mabel Dodge Luhan, who has wisely given up any even unwitting emulation of Hervey Allen, can be calculated only in terms of the 1575 pounds of literary remains which arrived at the Yale Library, and which are still being added to. These figures are of course niggardly in comparison to the 500,000 individual documents left by Josephus Daniels; or the 1,500,000 by Gifford Pinchot; or the approximately 3,000,000 by Franklin D. Roosevelt. But though not so deep as the Grand Canyon, nor so broad as some frontiers, "'twill do" for the literary executor.

What does this mean in terms of his task? It means that until the literary executor knows what exists, he cannot use it properly. It means that the best he can hope to do at the beginning is to toss every letter to the deceased into one pile, and every manuscript by the deceased into another. This is at least a beginning. The literary executor can only pray for the postponement of the inevitable day when he will begin to receive requests by mail, or even visitors at his doorstep, who wish to use the letters which the deceased received or is thought to have received from whoever it is about whom the applicant is writing a biography or critical examination, a dissertation or an article. Then comes for the literary executor the task either of providing copies (which must of course be true copies) or of risking the originals to unknown hands. Frequently the request has seemed modest to him who has made it: he asks only that the literary executor sort out the letters (being sure that nothing has been omitted), and then study them in order to confirm or deny the questioner in whatever may independently have been deduced. Superficially regarded,

such requests might seem easily denied. When a doctoral candidate has requested the shipment of all correspondence and manuscripts either directly to him or, "for safe-keeping," to the local public library in the hamlet where he teaches high school, in order for him to do a "definitive critical biography," the decision is less difficult. But it must be remembered that in order to keep the name of the deceased before the public, and emphasize the importance of his relationships and hence of himself, one of the best means is to have him cited as frequently as possible. Most requests are both legitimate and welcome. So, sooner or later, the correspondence must be ordered and the literary executor must become a research assistant for others.

In the past it was not uncommon for correspondence to a writer to be returned to the originator. Such a propriety was observed, for example, by Horace Walpole, whose will requested "that all such manuscript letters which shall be in my possession at my death that shall not concern or relate to my estate or effects and shall be written by any person who shall be living at that time may be returned to the person or persons by whom the same were written. . . ." Today, however, all categories of letters to a writer are more commonly regarded as an aspect of his own personality, and retained among the whole.

There is also the second pile of papers consisting of the manuscripts of the author's own composition. Starting to work with these, the literary executor must determine what has already been published and what has not, or whether a particular manuscript is an earlier draft of a work or a later, definitive revision. There is nothing easy about discovering what an author has published, especially if he is a poet or a contributor to periodicals. While most writers mean to keep track of things, few of them actually do. Comparatively few authors have had the distinction of bibliographies prepared during their life. Consequently one of the first tasks of the literary executor is to turn bibliographer, or if not that then at least a check-lister. Otherwise, and awkwardly, he may publish something which has already appeared in print. There are innumerable possibilities of error, not forgetting the recent incident when a poem "written by Miss Millay when she was twelve" turned out on publication in a magazine actually to have been her transcript of "Nest Egg" from Stevenson's A Child's Garden of Verses. As Vincent Sheean somewhat tortuously explained in the next issue of Vogue: "On the death of any real person innumerable phenomena ensue. Amongst these is the tendency on the part of all who have known that person to exaggerate the reality which has set the true one apart." The consequences may be occasionally unhappy, but there are few practising literary executors who will be without sympathy for the errors.

The importance of the check-list becomes more imperatively evident, however, in terms of the possibility that the literary executor, without it as guide, may permit copyright to lapse. Since the question of copyright is of the utmost significance, the literary executor must make himself at least an amateur on copyright matters.

American copyright law is based on the power of Congress, outlined in Article One, section eight, of the Constitution:

This copyright period, or monopoly, extends for twenty-eight years after the initial copyright has been taken out, with the right of renewal for a similar period on the part of the author or his immediate heirs. After this second period, or after the first if the initial copyright is not renewed, the writing enters into the public domain and may be printed without fee or permission. Since the American philosophy of copyright law is based not on the principle of protecting the author but rather, ultimately, of protecting public interest while giving the period of monopoly simply as an inducement to the author to contrive the expression of ideas, there is no sympathy for anyone who has failed to follow the letter of the law. The intent of the copyright monopoly was pointedly expressed by the late Chief Justice Hughes when he said: "The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors" (Fox Film Corp. v. Doyal, 286 U.S. 123, 127; 52 S. Ct. 546, 547; 45 L. Ed. 1010). The failure, therefore, to renew the copyright of a book originally published by a now defunct firm, obviously unable to remind the writer of his heirs that it is later than they think, puts the text in the public domain. In the case of publication by small presses—as early works so often are—such an eventuality is not at all uncommon. The later appearance of the same text or texts in subsequently copyrighted books (whose copyright may even have been renewed) will have no effect on anyone using the earlier appearance or arrangement. The appearance of an individual contribution to a composite work, such as a journal or magazine, may or may not be copyrighted either as a whole or in the name of the composite author. Each poem, story, or the like, which appears in a journal or periodical must have its initial copyright renewed (if it exists at all), if the item is not to enter the public domain and be free for all. Again, its subsequent appearance without alteration in a copyrighted book will not legally alter its status; although it is perfectly true that, in practice, publishing houses wishing to include such a technically free item in an anthology, generally (perhaps lest dog eventually be eaten by dog) treat the item as though it were properly copyright. It is not every writer who, to avoid loss, revises texts in order to give prolonged copyright life to the revised version.

In England the philosophy of copyright is more definitely to protect the writer, and for that reason overall copyright extends for a period of fifty years after the death of the writer, before any item enters the public domain. This applies to all writings by a particular author, no matter when any one of them may have been published during his lifetime. On the other hand, in Italy the copyright reverts after expiration into the hands of the State, which thereafter licenses all publication. The ideal literary executor, therefore, will know foreign copyright law as well as his own. But there are limits to endurance as well as capacity. In the case of those writers whose works have a considerable market value, such matters can often be left in the hands of a paid literary agent. In most cases, especially that of poetry where the returns are slight and the difficulties many, it is not easy to persuade an agent to take on such a commission. The practical literary executor will wish to read some such book as Ralph R. Shaw's Literary Property in the United States (Washington, D. C., Scarecrow Press, 1950), and then turn to a lawyer. To repeat a chestnut: "'He who is his own lawyer has a fool as client."

The question of common law literary property rights is somewhat simpler. A reasonable definition of this aspect of the use of unpublished texts has been given as "the right to control the public use of a manuscript up to the moment when it is first generally published." In the case of unpublished texts written by the deceased it is clear that the right either to publish or to prevent publication rests in the hands of the legally designated literary executor or of the heirs, and this right extends by law for perpetuity. The limitless endurance of this property right is of course constantly violated, in the letter of the law, by scholars, libraries, and the like. In the case, however, of substantial manuscripts written by Samuel Clemens but now in other hands, the prevention of publication by others than the heirs is still maintained. The basic considerations generally to be observed both by custodians and violators would seem to be those of financial return, invasion of privacy, or simply distance of time from the moment of creation. If the problem is not likely to be great for the literary executor handling the texts of the deceased, he should however be aware of the dangers of using correspondence written to the deceased, if published without the consent of the original writer of the letter or his heirs. The estate of the deceased owns the paper and the ink of the letter; it does not own the words in their particular arrangement. The converse will be true in regard to letters written by the deceased

to others, permission to use the text of which must be given by the literary executor or the estate. That is, the recipient may dispose of the physical property in any way he chooses, even if this means the destruction of the words; he may not however publish these words without permission.

The question of what to do with unpublished manuscripts has its serious aspects as well as embarrassments. Most writers and families of writers believe, even if secretly, in the merit of everything that he has set on paper. But not all publishers will irresistibly agree with them. Financial and critical judgments do not always coincide even when each is sound. In the case of Gertrude Stein the amount of unpublished material was considerable. William Carlos Williams, in his autobiography, gives an amusing account of his visit to Miss Stein's apartment in Paris:

But it would not close the subject for a literary executor. Miss Stein, as it happened, made things easier in her case by providing in her will for the funds out of which, if necessary, everything could be published. But such funds do not always exist, though equivalents of her belief in herself do. It is then that the literary executor must go about with manuscripts in hand, or seem to fail both the responsibility to the deceased and the expectations of the family. It is easy to shift the burden by a confidence in future generations, but posterity is not infallible.

Nevertheless to bring everything before the public, even when it is possible to do so, may not be advisable in terms of the critical response. No one will ever know whether or not it was better for Bridges to wait with the manuscripts of Gerard Manley Hopkins. At moments certain manners of writing are out of critical fashion. When they are, they are passed over without notice. How is the literary executor to know what is best to do? Yet in any event some attention must be called to the writer,

and to this end both friends and students can be stimulated to help. Sometimes the students and scholars and critics come without bidding. Should the arms of the literary executor be opened, and his eyes closed? If the treatment of the writer is sluggishly done, yet encompasses the majority of fresh data, better men may be scared off. Particularly in a time when the scholarly profession is eager for publication, a literary executor is flooded with requests for material, without any proper idea of what the result will be. Altogether too often one suspects that he who asks is moved not so much by interest in the subject as by self-interest. Altogether too often, also, the suppliant heart is pure but the critical strength is not the strength of ten. The literary executor is not always the proper person himself for the precise task at hand, but he is hard pressed to find the right one for it. And if he does, he cannot always give carte blanche, nor can he answer minute questions speedily and with ease. He seems therefore to block the way for others, and willy-nilly he slumps, or stumbles through his shadowy career.

From these many problems the literary executor cannot escape, nor are they problems to be escaped (indirectly) by persons who wish to deal with any aspect of a more or less contemporary writer. But in the handling of the great bulk of material which I have mentioned as increasingly characteristic, and those demands made on the literary executor both for ordering and servicing it, there are possible solutions. The average apartment-dwelling author, no less than his heirs or his executors, finds it increasingly difficult simply to house such material, quite apart from the expense of time and money involved in properly caring for it. For this reason, as well as for advantages of taxation, an astonishingly large number of writers are turning over manuscripts and correspondences to university libraries even during their own life times. Even when this has not been done, the estate acting through or on the advice of the literary executor is apt to do the same and for the same reasons. Generally speaking, only the physical property rights are conveyed, while the common law literary property rights or copyrights are maintained by the estate. Certain advantages are clear. For without expense to the heirs or to the literary executor, a university library will put the material into order, and, following the instructions given to them, will take over the substantial correspondence about it which inevitably follows as others wish in one way or another to exploit the material. They will also see, to further their own interests as well as in gratitude for the privilege of housing the manuscripts, that the collection is increased in scope from time to time as opportunities are presented. They will provide proper working facilities for those scholars who are privileged to use them, as against the necessary

invasion of the privacy of the literary executor's own study or office. The university library will even have closing hours, and be shut on Sundays.

At least the public repository will provide these advantages to the literary executor, if the proper one has been chosen. The choice is not always easy. A local historical society, in the region where the author himself lived in pleasant isolation, may seem sentimentally appropriate. Local pride will demand the deposit of material there on the basis of loyalty. But sentiment is not enough, if there are not proper funds nor skilled personnel to care for the material as it should be cared for. Nor will the reputation of the writer be maintained if the chosen library is so remote that great expense must be incurred by any great number who wish to consult the materials. Each generation may write its own biography, and such a biographer will certainly travel anywhere and stay there until his book is done. But for every biography there can be hundreds of articles, or references to the writer in minor but significant connections, and it is for the authors of these that distance does not lend enchantment. In such cases the scholar is only too likely to be unable to go at all. A writer may have been the chief literary figure of a remote state; a collection of his papers there may give its aid to the cultivational development of the state, but the decision in terms of the writer's national reputation (or of general public interest) will not be an open-and-shut matter. For writers do belong to the nation as well as to a township.

Nor will the reputation of the writer be helped, no matter where his papers are placed, if it is the policy of the university library to restrict the use of the material chiefly to its own students. Yet such a policy is understandable even if it is somehow lamentable. Not only are most universities weak in their ability to provide exploitable material for their students and faculties, but the expenses which they inevitably and to a substantial degree incur as custodians must be justified in terms of that library's particular budget. The donors of papers, like donors of buildings, must realize that the cost of maintenance cannot often be ignored. And it is equally true that librarians, like university administrators, ought constantly to be aware of the implications of expense which arise from the acceptance of a physical gift. These are, at any rate, matters for the literary executor to clarify in his own mind as well as to ensure clarification in the mind of the donee. What the literary executor and the estate can themselves escape through this partial shift of burden to the shoulders of libraries, the libraries only take on themselves. It is for this reason that one hears more and more frequently the suggestion that perhaps libraries in time will insist on either the eventual right to a proportion of the financial return from the publication of manuscripts

or at least the immediate funds necessary for an ordering of the papers. The resolution of the problem of justifying library expense by restricting the use of manuscripts to a local faculty or their students seems, in terms of the reputation of the author, often less than satisfactory.

The matter of regarding the literary papers in a writer's estate as a marketable asset cannot be ignored by the literary executor, although it is likely to develop as one of his chief embarrassments. Many writers have looked on their papers as their chief benefaction to their heirs. Many writers unfortunately have little estate beyond these papers. The difficulties attendant upon marketing these papers are, however, many; and the tension arising between their status as monument and as financial asset is great and not easily to be resolved. If the physical possession of the papers passes through sale into strange and private hands, the papers are no longer available to the literary executor for those services which distinguish his duties from those of the ordinary executor of average property. For the private purchaser of these papers, their continued use by a literary executor would be to deprive him of a chief asset as a collector of rarities. Nor will the papers inevitably be available to scholars or critics for whatever services they may render to the reputation of the deceased. The private owner of occasional papers of an author may be willing to make these available, but it is the unlikely purchaser of a total literary estate who will either be willing or able to house and service them in the necessary manner indicated earlier in this paper. In actual fact it is difficult to find the individual collector who is willing to take on the burden of such a collection, especially since he has not usually been able to purchase the literary rights to this property, and therefore owns only the paper and ink. How difficult it can be, as well as how comparatively unrewarding, is indicated in the incident related by Mr. David Randall, who in his capacity as head of Scribner's rare book department was asked to market the papers of Thomas Wolfe. Having vainly peddled the 35,000 pages of Wolfe's own manuscripts and the 10,000 letters and telegrams for $5,000, he finally was able to sell them to a private collector for $3,000. The collector, apparently faced with the demands attendant upon owning them, soon presented the collection to Harvard. Occasionally benefactors are to be found. The Hervey Allen papers were purchased by the University of Pittsburgh under a grant from The Buhl Foundation; the Emily Dickinson papers came to Harvard through the generosity of an alumnus. A certain degree of luck is, however, necessary for the sale of any literary estate as a whole. Libraries themselves are almost never able out of their own limited funds to purchase what they would so much like to acquire. I can think of at least three major and desirable literary estates of famous

American authors which are, and in two instances have been for some years, going begging.

The wish to sell papers as a lot (so that they will preserve the monumental value of the whole) in order to advantage the heirs seems generally doomed to disappointment. And if they are sold as a whole to anyone except to a public institution, there cannot of course be any real guarantee that the private collector or his heirs will maintain them as a whole. The papers have become his physical property, or that of his estate, and he can do with them what he will. The papers are not likely to be destroyed (though they could be), but they are likely to be offered for sale in lots. This, then, would be only to postpone what the literary executor may have wished to avoid: the damage of the scattering winds of chance. It is easy, and sometimes profitable, for the literary executor or the estate simply to split up the papers into lots for sale on the open market, or to profit from the sale of the more desirable items. But the monument has disappeared, and all the advantages that go with it. Once the dispersal takes place, then it will require a Wilmarth Lewis for a Walpole, or a Beinecke for a Robert Louis Stevenson, to bring the papers together again.

There can be no absolute advice on the advantage or propriety of the sale of literary remains. Everything must inevitably depend both upon circumstances and exigencies. It is perhaps useful, however, to suggest how often literary executors and heirs, sometimes after disappointing attempts to sell the papers or after they have weighed the advantages to the estate against the advantages to the memory of the deceased, come in the end to place them in public institutions where they can do the most good to the memory of the man who created them and whose monument they become.

No matter how much the law may emphasize that literary remains are simply property, like other property, the problems connected with their use and eventual disposition are special ones. For the writer, like his products, occupies a peculiar position both in life and afterwards. The author has had his own life, but in a very real sense he himself because of his genius has become public property. Public interest as well as private interest are therefore involved. Perhaps the principle of copyright provides an analogy to the situation which the literary executor faces. The writer is protected to some extent during his lifetime, as though by the first period of copyright, and for another span afterwards by the agency of his literary executor who serves in the guise of a renewal of privacy and monopoly. Thereafter the writer and all his literary remains actually enter more and more into the public domain. It is in order to make as easy as possible

the metamorphosis from first stage to last that the literary executor exists. The execution of this duty is the basic problem with which the literary executor must be concerned, but for many others as well as for himself the literary executor is the embodiment of the problem. Quod erat demonstrandum.

Notes