Can a private letter of wishes attached to a will legally stop a library from publishing papers the will itself left with no restrictions?

Plain-English summary

The Enoch Pratt Free Library's Board of Trustees wanted to publish an edited version of H.L. Mencken's diaries, which his 1954 will had left to the Library along with his books and papers with no publication restriction written into the will itself. The Library asked the Attorney General whether it was nonetheless legally blocked from publishing by a separate memorandum Mencken had given his executors, which said the diaries should not be opened to readers for twenty-five years after his death and even then only to approved scholars, or by a receipt the Library had signed acknowledging that understanding when the diaries were delivered.

The Attorney General concluded that neither document stopped the Library from publishing. The memorandum was never executed with the formalities required for a will and was not incorporated into the will by reference, since neither the bequest of the diaries nor the residuary clause referred to it, and two other parts of the will that did mention similar memoranda expressly said they were non-binding requests. The receipt likewise had no binding legal effect because the Library received no consideration for signing it and was already entitled to the diaries under the will regardless.

Currency note

This opinion was issued in 1985. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did H.L. Mencken's will itself say anything limiting the Enoch Pratt Library's right to publish his diaries?
No. The opinion found that none of the provisions of Mencken's "Last Will and Testament" contained any restriction on publication, so the will on its face granted the Library unrestricted ownership rights in the diaries, including the right to publish them.

Could Mencken's separate memorandum to his executors legally block publication even though it wasn't part of the will?
No, according to the opinion. The memorandum was not executed with the formalities required for a will, so it could not operate as one by itself, and the doctrine of incorporation by reference did not apply because the will's bequest of the diaries and its residuary clause never referred to the memorandum.

Did the receipt the Library signed when it took possession of the diaries count as a binding promise not to publish them?
No. The opinion concluded the receipt was not a legally binding agreement because the Library gave no consideration for it and was already entitled to receive the diaries under the will regardless of what the receipt said.

Background and statutory framework

Mencken's 1954 will left the Enoch Pratt Free Library his books, papers, and family materials, including at least a three-quarters interest in the literary property represented by his diaries, with the residuary estate eventually passing largely to the Library after a life trust. A separate memorandum Mencken wrote to his executors said the diaries should go to the Library on the condition that they not be opened to readers for twenty-five years after his death and then only to approved scholars, and the Library's then-president signed a receipt reflecting that same understanding when the diaries were delivered by Mencken's executor, Mercantile-Safe Deposit and Trust Company.

The opinion applied the settled Maryland rule that a testator's intent must be gathered "from the four corners of the will" rather than from extrinsic evidence, citing Fersinger v. Martin, 183 Md. 135, 138 (1944), and Wesley Home, Inc. v. Mercantile-Safe Deposit & Trust Co., 265 Md. 185, 198 (1972). Because the memorandum lacked the formalities required for a will, it could not independently limit the bequest, per Chase v. Stockett, 72 Md. 235 (1890), and it could become part of the will only under the doctrine of incorporation by reference recognized in In re Hull's Estate, 164 Md. 39, 45 (1933), which required the will to clearly describe the document and manifest an intent to give it binding effect. Since neither the bequest to the Library nor the residuary clause mentioned the memorandum, and two other unrelated bequests that did mention similar memoranda expressly called them non-binding "requests," the opinion found no basis to treat the memorandum as incorporated, and found the Library's receipt unenforceable for lack of consideration.

Citations

Statutes: none cited.

Cases:

• Wesley Home, Inc. v. Mercantile-Safe Deposit & Trust Co., 265 Md. 185, 198 (1972)
• Fersinger v. Martin, 183 Md. 135, 138 (1944)
• Chase v. Stockett, 72 Md. 235 (1890)
• In re Hull's Estate, 164 Md. 39, 45 (1933)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1985/Volume70_1985.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

TESTAMENTARY LAW

Wills—Incorporation by Reference—The Enoch Pratt Free Library, which Received the Diaries of H.L. Mencken under his Will, is not Prohibited by Documents Outside the Will from Publishing the Diaries.

October 4, 1985

Dean Michael J. Kelly
University of Maryland School of Law

On behalf of the Board of Trustees of Enoch Pratt Free Library, you have requested our opinion on the Library's right to publish the diaries of H. L. Mencken. Specifically, you ask whether publication is effectively prohibited either by a memorandum from Mencken to his executors or by a receipt given by the Library when the diaries were transferred to it after his death.

For the reasons given below, we conclude that the memorandum and receipt are without legal effect. Hence, in our view, the Library has a legal right to publish the diaries.

I
Background

In 1954, H. L. Mencken executed a "Last Will and Testament", which provided in part:

"ITEM THREE. I give and bequeath to the ENOCH PRATT FREE LIBRARY OF BALTIMORE CITY the following: (1) all my books and pamphlets (including dictionaries) relating to language, and all my notes and other materials gathered in anticipation of a possible Third Supplement to my book, The American Language; (2) all my family papers and souvenirs, and all my books by Menckens other than myself; (3) all my letters from Marylanders; and (4) all my copies of my own books, and all my copies of books by others discussing me or other Menckens, or relating to the Mencken family."

The will also directed that Mencken's residuary estate be held in trust for certain named individuals during their lives. Thereafter, the trustees were directed to distribute the residuary estate to the Enoch Pratt Library and the Johns Hopkins Hospital, giving the Hospital only one quarter. Thus, by the terms of the will, the Library now owns at least a three-quarters share in the literary property in Mencken's diaries, that is, the right to control publication of the diaries.1

However, Mencken also wrote a separate memorandum to his executors, in which he expressed in detail his wishes concerning the disposition of his books and papers. Section 70 of the memorandum stated that his diaries "are to go to the Pratt Library on the conditions" set forth in a separate statement placed with the diary volumes.2 That statement reads:

"This diary is to be deposited by my Executors on the understanding that it is not to be put at the disposal of readers until twenty-five years after my death, and is then to be open only to students engaged in critical or historical investigation, approved after proper inquiry by the Chief Librarian."

Before delivering H. L. Mencken's diaries and other papers to the Library, Mercantile-Safe Deposit and Trust Company, as his executor, requested a receipt pursuant to that memorandum and statement. The receipt, executed by the then president of the Library, stated that the materials were "received upon the explicit and irrevocable understanding imposed by the Author, that... the contents are to be opened for examination only to graduate students or those of a higher grade engaged in serious, critical or historical investigation".

In accordance with the understanding so expressed, the Library has instituted procedures for affording scholars, but not the general public, access to certain of the Mencken papers. However, you have indicated that the Library's Board of Trustees wishes to publish an edited version of the diaries, "largely because of our institutional role of encouraging the dissemination of important materials to a wider public". Letter from Dean Michael J. Kelly to Benjamin L. Brown, City Solicitor (December 26, 1984). In our view, there is no legal barrier to the Board's doing so.

II
Analysis

In construing a will, the primary concern is to ascertain and effectuate the testator's intent. Wesley Home, Inc. v. Mercantile-Safe Deposit & Trust Co., 265 Md. 185, 198 (1972). That intent must, however, ordinarily be gathered "from the four corners of the will."... Extrinsic evidence should not be admitted to show that the testator meant to say something different from what his language imports.... What he meant to say must be gathered from what he did say.... The will stands just as he had written it." Fersinger v. Martin, 183 Md. 135, 138 (1944).

None of the provisions of H. L. Mencken's "Last Will and Testament" contain restrictions on publication of any of his papers. Therefore, that document on its face grants unrestricted ownership rights in the diaries, including the right to publish them.

Moreover, Mencken's memorandum to his executors does not in itself have the legal effect of a will, because it was not executed with the formalities required for wills. See Chase v. Stockett, 72 Md. 235 (1890) (unattested memorandum of instructions to executors cannot operate as a will). Therefore, it cannot, by itself, limit the bequest of the diaries in the will.

The memorandum would have that effect if, under the doctrine of incorporation by reference, it could be treated as part of the will. However, that doctrine is not applicable in this case.

The doctrine of incorporation by reference has long been recognized in Maryland. In re Hull's Estate, 164 Md. 39, 45 (1933). Under that doctrine, a document that is not itself valid as a will becomes part of a valid will that refers to and incorporates the document. That is, the doctrine allows the provisions of a separate writing to be given the same effect as they would have if they had been written directly in the will. However, the separate document can be treated as incorporated by reference only if the will both describes it clearly and manifests the testator's intent that it be given the same binding effect as the will.

Neither Item Three, the bequest to the Library, nor the residuary clause of Mencken's will refers in any way to the memorandum to his executors. Therefore, it is simply not possible to conclude that those provisions incorporate the memorandum by reference.

Moreover, the only two provisions of the will that do appear to refer to the memorandum clearly express an intent that it not be given the binding effect of testamentary provisions. Item Five, a bequest to Mencken's brother and sister of various personal effects, states that he had left "a memorandum suggesting the further disposition of some of these items, but they are free to disregard it as they see fit". Item Nine similarly refers to a memorandum "suggesting the terms of a further disposition of this bequest" and expressly states that the "memorandum is a request only".

Accordingly, in our view, there is no ground on which it may be concluded that Mencken's memorandum is legally effective to prevent publication of his diaries. Had the bequest to the Library stated, for example, that the papers were given "pursuant to the terms of the memorandum regarding their use", we might well have a different case. But that kind of incorporation by reference is not stated in the will, and it may not be inferred.

Nor do we view the Library's receipt for Mencken's papers as a legally binding agreement not to publish the diaries. The Library received no consideration for executing that receipt. Rather, Mencken's executor asked for the receipt as a precondition for delivery to the Library of property bequeathed to it under the will, that is, property which the Library was entitled to receive. That the executor requested the receipt in an attempt to carry out Mencken's wish cannot operate to convert that wish, otherwise legally unenforceable, into a valid limitation on the use of property given to the Library unconditionally by the will.

III
Conclusion

In summary, it is our opinion that neither Mencken's memorandum to his executors nor the Enoch Pratt Free Library's receipt for the papers delivered to it constitutes a legally enforceable prohibition against publication of Mencken's diaries. Mencken, a self-described "congenital disbeliever in laws", once dismissed all lawyers as "obscurantists". But in this case at least, the law is clear and permits no other conclusion.

Stephen H. Sachs, Attorney General
C. J. Messerschmidt, Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

1 We do not address the question of whether the publication rights, which are distinct from ownership of the physical volumes themselves, were bequeathed to the Library along with the volumes or were part of the residuary estate. If the publication rights were included with the bequest of the volumes, the Library is the sole owner of those rights. If, however, the publication rights were part of the residuary estate, the Hospital owns a one-quarter share in those rights. But you have not asked, and, accordingly, this Opinion does not address, the question of whether the Hospital has an interest in the diaries.

2 The portion of the memorandum dealing with the diaries cross-refers another paragraph, which states that certain volumes of material "are to go to the libraries named only on the conditions set forth on the first page of each, which must be agreed to in writing before they are dispatched.... In case it turns out to be impossible to find libraries willing to take one or more of the sets on the terms provided, it or they are to be destroyed." (Emphasis in original.)