Keeping Matisse in the Hood

The Barnes Foundation and its famous art collection might benefit financially from a move, but would it infringe on the late founder’s wishes?

Published in 2004 Pennsylvania Super Lawyers Magazine — June 2004

In the polished and imperfect world known as law, there is a high, forbidding fence. On one side stands the usual. On the other? That’s for the remarkable. Only occasionally does a case make it across.Keep your eye on the matter in Montgomery County, Pa., Orphan’s Court bearing docket number 58,788. It’s on its way.The people watching — and there are many — call it the Barnes case. Stripped of the noise, it’s an estate and trust matter. But it’s more. It’s about the future of billions of dollars worth of Impressionist and early-Modern paintings, the wishes of an arguably brilliant collector who died in an automobile accident in 1951, the future of tourism in Philadelphia, three art students packing magnum-power pro bono attorneys, and maybe even the direction of estate and trust law in the United States.

In one sense, the matter bearing docket number 58,788 originated in a working-class Philadelphia neighborhood in 1872 with the birth of a boy named Albert C. Barnes.The boy became a physician, the physician a researcher, and the researcher a businessman who developed an antiseptic medicine.The medicine? That became a fortune.Barnes was bright, maybe a genius, but he wasn’t quite as successful socially as he was financially. Self-made and used to cutting his own path, he stood out in the oldmoney section of Philadelphia known as the Main Line. His sympathies, if not his money, lay with the common folk, not his fancy neighbors.Maybe Barnes was eccentric.Maybe he was a genius.There are no doubts when it comes to his eye for art. Starting in the early 1900s, he began amassing Cézannes, Renoirs, Matisses and more. It is a spectacular collection, arguably the finest in private hands on the planet — 181 Renoirs alone, to the Met’s mere 27. Its value is a guess, one that varies from $5 billion to $25 billion.But Barnes had more than a need to collect. He had a vision, and by the time he died he had already set up a trust — to protect that vision. His foundation was given $6 million to house the collection and further his theories of art appreciation and education, developed in part as a result of his association with philosopher John Dewey, who served as the foundation’s first education director. Lincoln University, where he had established some ties, was given the right to nominate the majority of the board members after 1946.

At the time $6 million was a lot of money, and upon Barnes’ death it grew to $10 million. But it drained quickly during some expensive legal squabbling in the 1990s, most notably when the foundation sued some well-to-do neighbors in Lower Merion Township for civil rights violations, alleging that their complaints about noise and traffic were race-based.And now? Now is not good.The foundation loses money with every visitor, it is unable to gain the trust of potential donors because of past mismanagement and, most pressingly, it’s close to bankruptcy. But it has its art, and it has a plan:The board wants to move the collection from Lower Merion to a new as-yet-unspecified location in Center City Philadelphia.This would give it access to a $150 million signing bonus that has been pledged by three local charities. Some $100 million would go toward the move, with $50 million going into the foundation’s endowment.The foundations say donors have already pledged $100 million.It is an apparently elegant solution with a big problem: Barnes himself has already said no.And he’s still saying it, from his grave — or at least that’s the way it looks to the people who oppose the move. Article 13 of the Barnes Trust, dated December 6, 1922, says in part:“All the paintings shall remain in exactly the places they are at the time of the death of Donor and his said wife.”

One interpretation is that Barnes was talking about how the art was to be displayed on the walls — and he was fanatical about that, no question. Another is that he wanted everything to stay the way it was, including the location of the gallery.But something has to change.The foundation has to find a way to secure its financial future, and estate and trust law is clear: It also has to stay as close as possible to Barnes’ intent, which was to run a school and an arboretum for the appreciation of art and horticulture. How to fulfill that intent while solving the problems — that’s the genesis of the case before Orphan’s Court Judge Stanley Ott.“This is one of the biggest if not the biggest case in estate and trust law right now,” says Howard M. Cyr III, co-managing owner of Harvey, Pennington, Cabot, Griffith & Renneisen, a Philadelphia firm known for commercial litigation in pharmaceutical and medical device products liability, labor, and estate and trust work, among other areas.Cyr, who has had a case litigated before the U.S. Supreme Court, represents the three Barnes students opposing the move. They were admitted amicus curiae — friends of the court.Their role is limited, but their impact is profound.Without them the board’s attempt to change the indenture would be virtually unopposed.Interviewed in his 29th-floor corner office, Cyr says that aside from some expense money, he is essentially handling the case pro bono — because it is interesting and important, and because an old University of Pittsburgh law school friend, estate and trust specialist Terrance A. Kline, asked him to help.

“If you were looking at civic interest, a case could be made that the move might help the city of Philadelphia,”Cyr says.“But that is not the point here.The point is that Dr. Barnes established an educational institution, and that mission is best served in the location where it is now.”The solution, Cyr and the students argue, is to leave the art in place and start on new paths that will raise money. One step in that direction has already been taken. Judge Ott did allow the board to expand from five to 15, which should add fund-raising muscle. But that is minor in the context of the board’s attempt to move the collection.Other possible solutions, Cyr argues, include selling a foundation-owned 137-acre estate known as Ker-Feal, which could raise maybe $12 million; securing more parking or better shuttle bus service to allow more visitors; raising admission prices; and selling some of the many pieces the foundation owns that are not on display, which could also bring in millions. In the art world this is called deaccessioning. It is a bad word. Reputable institutions are not supposed to sell pieces to pay the rent.Judge Ott, showing what’s said to be typical pragmatism, left the door open. In an opinion rendered after four days of testimony, he says: “If it appears that adequate capital can be produced by deaccessioning, the ethical problems presented thereby may have to yield to the donor’s expressed wishes.”That was not a complete victory for the stay-put forces, since Ott also ruled that moving the gallery may be permitted, if it proves to be the least drastic deviation from Barnes’ wishes. In a preliminary ruling, he says the board had to do two things. It must appraise its non-displayed art — and Ker-Feal — to see how much a sale might raise, and it must conduct a feasibility study to see if the move to Center City makes economic sense.Says Cyr: “Ott is a very practical judge and seems to be expressing the point of view that selling a few pieces is by far the lesser evil than uprooting the gallery and moving it to Philadelphia.”Ott gave the foundation something else to think about too.“The move to Philadelphia has been floated as the only lifeboat in the sea,” he wrote. “Since the outside charities are footing the foundation’s legal bills in these hearings, we accept their single-option theory as the product of zealous advocacy.”In other words, go back and look under the mattress, folks, and see what you come up with.Then we’ll talk.A few blocks down Market Street from Cyr’s office, the opinion is different. Ralph Wellington is the lead attorney for the board — and chairman of Schnader Harrison Segal & Lewis, which frequently represents major corporations in significant litigation and business matters.Wellington notes that the board has studied all acceptable possibilities, determining that moving is the only way to continue the foundation’s educational mission. He says deaccessioning was never seriously considered.“It’s a downward spiral,” says Wellington.“From the board’s standpoint, [changing] the physical location of the gallery is not nearly as severe a departure [from Barnes’ wishes] as selling the art.”Clearly, he argues for the board, keeping all the collection’s pieces together and moving the gallery is the way to stick to Barnes’ wishes for an educational facility in a way that goes furthest toward providing long-term financial success.“This is not an attempt to take a sledgehammer to the trust,” he says.Further complicating the issue are statements by Barnes CEO Kimberly Camp that it is an educational facility, not a museum — though it is now open to the public three days a week — and that it will keep education as its focus if the move is allowed.This leaves cynics with some ammunition:You mean you’re going to park it in a spot known for museums, accept $150 million from charitable foundations, make an argument that moving would be good for the city of Philadelphia — and operate it as a school, not a museum?“That is exactly our concern,” says Cyr. “We think it is a slippery slope that will gradually erode the educational mission and turn it into a museum.”A final decision is expected this summer. Look for a lot of wailing—and an appeal.

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