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The Barnes Art Collection Controversy, Part II

The Barnes Art Collection Controversy, Part I

The powerful story surrounding the legacy of Dr. Albert C. Barnes and his historic art collection was captured in a documentary released on DVD last week, called The Art of the Steal.Matisse

While this isn't the typical way we track down stories, it certainly was highly entertaining.  The Art of the Steal is a must-watch; it's not only moving and compelling, it is thoroughly enjoyable.

So who was Dr. Albert Barnes?  Raised in a Philadelphia working-class family, he found extraordinary wealth by inventing a new antiseptic medicine to treat and prevent venereal diseases at the start of the 20th Century.  He used his wealth to build what is widely considered to be the greatest collection of post-impressionist art ever assembled.  It includes hundreds of works by masters like Renoir, Cezanne, Matisse, Monet, Picasso, Van Gogh . . . and on and on.  The collection has been valued at 25 to 30 billion dollars, at least.

Dr. Barnes was certainly anything but conventional.  He deeply disliked the art community "elite", especially those involved with art museums, such as the nearby Philadelphia Museum of Art.  He proudly exhibited his collection in 1923 and was ridiculed by art critics who called his works "nasty" and "primitive".  Dr. Barnes fired back, saying that "Philadelphia is a depressing intellectual slum".

He defied convention by grouping his art pieces based on aesthetics and philosophical reasons, instead of by artist or period.  Henri Matisse said "The Barnes Foundation is the only sane place to see art in America."

Dr. Barnes never had children, but he took great care to plan for his treasured art legacy.  In 1922, he created a type of trust agreement called a "trust indenture".  This trust established the Barnes Foundation, a charitable organization to manage his art gallery as an educational institution, on a beautiful 12-acre property in the suburbs south of Philadelphia. 

He amended his trust indenture several times, the last less than a year before his sudden death from a car accident in 1951.  Dr. Barnes spelled out, at length, how his art could not be sold, moved, placed on tour, or even rearranged within his gallery.  He wanted it used primarily for education, but open for the public (to benefit the working class) on a limited basis.  He restricted how it could be viewed, when (one day per week, generally), and how much could be charged. 

Tragically, the same care he used in adding restrictions to his trust indenture to protect his vision ultimately helped lead to its downfall.

Why?  Dr. Barnes made it very difficult for the Board of Trustees to keep the Barnes Foundation profitable.  At least, that's what the trustees said over the years.

So, little by little, they filed court proceedings asking for permission to change the trust provisions.  They charged more admission, allowed additional days of public viewing, increased the permissible number of visitors, and obtained court approval to take the paintings on tour to raise money, among other deviations.  With the changes, the trustees engaged in expensive litigation in court, arguing that the terms of Dr. Barnes' trust were impossible to follow because of the great costs needed to maintain the collection.

The final blow came in 2004, when a Judge ruled that the Barnes Foundation, now supported in court by three wealthy and elite charitable foundations and the Pennsylvania Attorney General, could move the entire collection away from Dr. Barnes' treasured building and 12-acre gardens.  Where?  To the museum district of downtown Philadelphia, right next door to the Philadelphia Museum of Art.

This was probably the last place on earth that Dr. Barnes would have wanted.  He once said, "The Philadelphia Museum of Art is a house of artistic and intellectual prostitution."  Yet the Judge felt the move was appropriate.

In the same ruling, the Judge permitted the board to expand from five members to fifteen, allowing the Barnes Foundation to be controlled by the very same type of wealthy art "elite" that Dr. Barnes despised when he was alive.

How could Dr. Barnes' wishes have been so blatantly disregarded?  Because of the "doctrine of deviation", which is a legal principle that allows a court to effectively rewrite a charitable trust if the purpose becomes impossible to maintain without changes.  The trustees argued that there was no financially-viable way to keep the art in the building Dr. Barnes had created for it.  The collection could only be maintained, they argued, by permitting the move.

These trustees stood to benefit greatly by a move downtown.  Most (if not all) of them had ties to the museums nearby to where the new building would be built.  And the Mayor of Philadelphia, the state Attorney General (the person charged with the responsibility of upholding charitable trusts), and even the Governor all used their political weight to make the move happen.  Why?  For tourism, of course!  They realized that the Barnes collection would potentially transform downtown Philadelphia into a must-see destination for art aficionados across the world.

This wasn't the end of the fight though.  Two years later, a new challenge was filed in court to stop the move, based on some very interesting evidence.  But, was it enough to enforce Dr. Barnes' wishes?

To be continued ...

(This is the first in a two-part series discussing the Barnes Art Collection Controversy; you can read Part II here)

Posted by: Andrew W. Mayoras and Danielle B. Mayoras, co-authors of Trial and Heirs: Famous Fortune Fights! and co-founders of The Center for Probate Litigation and The Center for Elder Law in metro-Detroit, Michigan, which concentrate in probate litigation, estate planning, and elder law. Andrew and Danielle are husband and wife attorneys, professional speakers and consultants across the country.  Follow us on Facebook and Google+.