Speaker 1: Edward Alby was one of the greatest American playwrights of
Speaker 1: his generation. He won the Pulitzer Prize three times over
Speaker 1: a career that spanned nearly sixty years. His most famous
Speaker 1: play was Who's Afraid of Virginia Wolf? The play opened
Speaker 1: on Broadway in nineteen sixty two. It continues to be
Speaker 1: revived and was adapted into the films starring Elizabeth Taylor
Speaker 1: and Richard Burton. I actually felt for him, and the
Speaker 1: match scene practical too. For a while. Daddy really thought
Speaker 1: that George had the stuff to take over when he
Speaker 1: was time, and we both thought that When i'll Be
Speaker 1: died last year, he left a will with an unusual
Speaker 1: provision that is somewhat controversial. According to The New York Times,
Speaker 1: the will contains a provision that any unfinished manuscripts be destroyed.
Speaker 1: Joining us is Leor Strahlovists, a professor at the University
Speaker 1: of Chicago Law School. Le Or. There's even a term
Speaker 1: for an artist requesting the destruction of unfinished work in
Speaker 1: a will dead hand control. How unusual is it, Well,
Speaker 1: it's not the typical artist who wants to do this,
Speaker 1: but certainly over the course of literary history and um
Speaker 1: the history of visual artists, we've seen this come up
Speaker 1: time and time again. I think the first known historical
Speaker 1: example is actually Virgil's a Need, and obviously um uh,
Speaker 1: you know, we have this recent example of Edward Alby,
Speaker 1: but um Brett Western the photographer had similar motivations and
Speaker 1: similar expressed wishes. And maybe the most famous case prior
Speaker 1: to this one is Franz Kasca directing his executor Max
Speaker 1: Broad to burn unread all of his unfinished works. And
Speaker 1: those unfinished works included not only his diaries, which were
Speaker 1: subsequently published, but also The Trial and the Castle, which
Speaker 1: are considered to be COSCA's two greatest novel novels. Certainly,
Speaker 1: are you you mentioned that that kaskas some of Oscar's
Speaker 1: works were published. Is it unusual for executors to disregard
Speaker 1: the instructions in a will to destroy unfinished work. It's
Speaker 1: not terribly unusual, and I think one reason why is
Speaker 1: there's not really a lot of um court guidance on
Speaker 1: this issue. So this does come up from time to time.
Speaker 1: It comes up with famous artists, but there's really not
Speaker 1: a lot of appellate cases published opinions where courts are
Speaker 1: either telling executors that they cannot or that they can
Speaker 1: destroy works of this kind. You'll find dicta in the
Speaker 1: occasional case where a court will suggest that where the
Speaker 1: public's interest in seeing a work of art is significant enough,
Speaker 1: then the will can be disregarded. But dicta is about
Speaker 1: the closest. Is about the closest you'll get. You generally
Speaker 1: don't have these cases litigated. And one reason you don't
Speaker 1: have these cases litigated is there's not usually any party
Speaker 1: that wants to show up in court and argue on
Speaker 1: behalf of destruction. So the artist might have preferred that
Speaker 1: the works be burned or are thrown out, but usually
Speaker 1: the airs see the value of publication and not a
Speaker 1: whole lot of value in giving voice to the words
Speaker 1: that showed up in the last Will and testament. And
Speaker 1: so my instinct is from looking at the cases and
Speaker 1: really the absence of cases, that a lot of the
Speaker 1: time what happens is these things get written into wills,
Speaker 1: and then the airs maybe decide um that that they'd
Speaker 1: like to see destruction not happen. The executor doesn't particularly
Speaker 1: want to set something that might have significant market value
Speaker 1: on fire, and everyone sort of goes away goes away happy.
Speaker 1: You just might have an artist spinning in his or
Speaker 1: her grave. The provision and all these will says, if
Speaker 1: at the time of my death, I shall lead any
Speaker 1: incomplete manuscripts, I hereby direct my executors to destroy such
Speaker 1: incomplete manuscripts. His final known play, Laying an Egg, was
Speaker 1: scheduled for production twice and withdrawn twice by all they
Speaker 1: who said it wasn't ready. Might the executors decide that
Speaker 1: it is not an incomplete manuscript. I think they've got
Speaker 1: a lot of room to do so under the will,
Speaker 1: And in fact, I think the way the will was
Speaker 1: drafted there's actually some ambiguity based into it. So you
Speaker 1: read that first clause, which um is as you describe it.
Speaker 1: It says, if it's incomplete, then the direcutors executors are
Speaker 1: to destroy it. But then there's actually a final sentence
Speaker 1: in that third clause, the destructive provision, and that sentence says,
Speaker 1: the determination by my executors, in their best fiduciary judgment
Speaker 1: as to the material directed to be destroyed in this
Speaker 1: article third shall be final, conclusive, and binding upon all
Speaker 1: parties having any interest in my estate. And the way
Speaker 1: I read the will. That last sentence is actually in
Speaker 1: some tension with the first sentence, the one you read,
Speaker 1: which directs the executors to destroy anything that's incomplete. So
Speaker 1: what did Albie mean or what did the lawyers who
Speaker 1: drafted this on his behalf mean by that last sentence?
Speaker 1: Did they mean that the executors have complete discretion to
Speaker 1: decide whether something is complete or not that's possible. Did
Speaker 1: it mean that the executors have the ability to decide
Speaker 1: that even though something is incomplete, it's got enough artistic
Speaker 1: merit to warrant publication production as a play. Well, to me,
Speaker 1: that's that's not a That's not a strained reading of
Speaker 1: the final sentence and the will either. In other words,
Speaker 1: I think this will's ambiguous, and where that will's ambiguous,
Speaker 1: it's going to give even more discretion to the executor,
Speaker 1: because I think the courts, while they might be willing
Speaker 1: to tolerate the destruction of valuable property um they sat
Speaker 1: on an instruction and a will, they're not going to
Speaker 1: do so when the only grounds for destruction is ambiguous language.
Speaker 1: And to me, this language is drafted comes pretty darn
Speaker 1: close to being ambiguous. Lear I'm interested in sort of
Speaker 1: what you think is the right outcome to this this case.
Speaker 1: I mean, is there in your mind any reason, putting
Speaker 1: aside that ambiguity, that Edward all Be as an artist,
Speaker 1: shouldn't be able to say whether or not he wants
Speaker 1: his incompleted works ever to see the light of day.
Speaker 1: So I think, if you I'm not going to fight
Speaker 1: the hypothetical, Let's suppose that this will were drafted in
Speaker 1: an unambiguous way, and that everyone thought that Edward i'll be,
Speaker 1: being of sound mind and sound body, wanted anything that
Speaker 1: he hadn't finished to be burned uh and and not published.
Speaker 1: In that case, I'd argue pretty strongly that the right
Speaker 1: thing for the executor to do, the right thing for
Speaker 1: the courts to do in the event that there was
Speaker 1: litigation between the executive and UM and the airs, which
Speaker 1: is the foundation in this case, I think, would be
Speaker 1: to go ahead and follow Edward Alb's wishes. And part
Speaker 1: of the reason for that is that I think what
Speaker 1: makes an artist great is selectivity. Um, you know, a
Speaker 1: good musician, a good painter, a good playwright, They're gonna
Speaker 1: have lots and lots of ideas and they are gonna,
Speaker 1: you know, stick most of those ideas in a filing
Speaker 1: cabinet somewhere, or leave them on a hard drive, and
Speaker 1: they'll never see the light of day. And usually that's
Speaker 1: to the economic benefit and the artistic benefit of the artist.
Speaker 1: Of course, there's some artists out there who are just
Speaker 1: producing canvas after canvas or play after play, and some
Speaker 1: of it's good, some of it's bad. But in my view,
Speaker 1: the artists that we really remember, the one who stands
Speaker 1: the history of time, they tend to publish only a
Speaker 1: small fraction of the raw creation that they come up with.
Speaker 1: And usually, uh, members of the public appreciate the fact that, well,
Speaker 1: if i'll Be put his name on it and decided
Speaker 1: that it was good enough for us to see, then
Speaker 1: you know, by golly, we should we should buy the
Speaker 1: tickets to go. We could talk about this for so long.
Speaker 1: Thank you, Leors for Hilovitz, professor at the University of
Speaker 1: Chicago Law School,