A wealthy art collector dies, leaving his much-valued and quite extensive collection of artwork to a museum in his will. What happens if the museum does not want the artwork–or only wants a portion of the collection? Alternately, what happens if an eccentric art lover leaves his collection to a museum with restrictive conditions on the permissible display of the art? Must the museum comply with the conditions ad infinitum, regardless of the burden these conditions create, or is it free–at some point–to break free from the binding conditions?

The Brooklyn Museum is currently facing a sticky situation as beneficiary of a large collection of paintings, jewelry, porcelain, and furniture from the  estate of Colonel Michael Friedsam, an art collector and one-time President of the store B. Altman & Co.  Unfortunately, the museum feels that many of the works are not of museum quality and seeks to sell or give these away. But right now, neither is an option.

The problem is that the museum cannot sell or give away the art without first obtaining permission from Col. Friedsam’s executors, the last of whom died over forty years ago.  Further, because the will specified that, in the event the collection were to be broken up, the art should go to the Colonel’s brother-in-law and two named friends, a judge has now blocked deaccession of any of the artwork until the descendants of those named in the will are found. Thus, until that time, the Brooklyn Museum must continue to store the artwork according to strict standards governing the conservation and storage of art–an expensive task, to say the least.

Another museum, the Barnes Foundation, was also troubled in recent years by the conditions attached to the display of the foundation’s artwork, which had been left in trust to it by the foundation’s founder, Dr. Albert Barnes. As a result, the foundation and the trust provision became the subjects of a much-publicized legal battle. Dr. Barnes had established the foundation as an American educational art institution in Merion, PA, and he donated his massive art collection to the foundation, providing detailed conditions on its terms of operation. These terms included that the artworks continue to be displayed in “exactly the places they are”: in other words, the art must be displayed just as he had arranged it on the foundation’s walls, in Merion.  (Barnes had desired to keep his collection private, to be used for educational purposes, and away from Philly’s elite art establishment.)

This particular provision became one source of the legal problems that developed when the foundation’s board petitioned the Montgomery County Orphans’ Court to relocate the museum to Philadelphia.  The board wanted to make the artwork more accessible to the public, a decision deemed necessary to bolster declining revenues and to support the museum’s financial future. Despite numerous legal challenges (many of which became the subject of a 2009 documentary, The Art of the Steal), the museum moved to its current location in Philadelphia in 2012, thus breaking the trust provisions–albeit with the court’s permission.

Within the world of wills and trusts, concern is often expressed about dead hand control–the control that a decedent exerts on future generations by attaching conditions to the receipt of the decedent’s property, conditions to which the beneficiaries must conform. Judge Richard Posner has expressed such concern in economic terms: the dead hand “does not have a live mind controlling it and making a continuously informed judgment as circumstances change.” In other words, with dead hand control,the deal struck cannot be “renegotiated” as time passes and circumstances change, even if the conditions create onerous burdens or unworkable scenarios. However, despite such concerns, the rule remains that unless the provisions violate public policy (or require illegal activity), the dead hand prevails.

Such concern applied to the terms of Barnes’s trust and the current concerns of the Brooklyn Museum–though admittedly the Brooklyn Museum is burdened less with dead hand control and more with merely what to DO with the gift.  But the overarching question remains the same: what happens when the “benefit” in a bequest becomes a burden? Should there be limits to how much control a decedent has over a beneficiary’s receipt of property? And should different rules apply when the beneficiary is a private individual versus a public institution, such as a public art museum?

–Avery VanPelt

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One Response to At the Behest of a Bequest

  1. Katharine Skinner says:

    This is very interesting and definitely highlights the problem of dead hand control, particularly when decedents don’t plan with enough forethought to efficiently handle all the situations that may arise in the future regarding their property. The story about Michael Friedsam and the Brooklyn Museum is particularly intriguing, and to me it raised another important issue in estate planning: that courts and executors are supposed to effect, as closely as possible, the donor’s intent. Presumably Friedsam left his collection to the museum in order to have the pieces displayed, not knowing (again, presuming this) that many of them were fake. If this was his intent, then it seems like maybe the court should allow the museum to dispose of the fake pieces however it wishes, since Friedsam did not intend to make the museum store fake pieces, but instead intended only to have the museum display the pieces that are real and unique.