Art Held Hostage: The Battle Over the Barnes Collection
by John Anderson
W.W. Norton & Company, 2003
238 pp., $25.95
As John Anderson describes him, Dr. Albert C. Barnes was like a lot of people who have been successful entrepreneurs—a person of strong, if somewhat contradictory, tastes and opinions. The successful Philadelphia maker of an eye treatment for children, Barnes ran his factory and everyone who worked for it with a firm hand. He was litigious, controlling, dogmatic, and secretive, yet at the same time he encouraged his employees to expand their minds by discussing Sigmund Freud and the arts on company time.
Barnes grew up in a working-class neighborhood, but he tried to fit into Philadelphia society by regularly having prominent citizens such as orchestra maestro Leopold Stokowski and actress Katherine Cornell at his dinner table. Still, his desire to fit in did not prevent him from picking fights with socially prominent Philadelphians such as philanthropist Walter Annenberg and then University of Pennsylvania president Harold Stassen. Notwithstanding Barnes’ impeccably Victorian outlook (as Anderson puts it) and Brahmin lifestyle, he also became an ardent New Dealer and supporter of greater rights for minorities.
Barnes was also an art student and collector of extraordinary ability. During his lifetime (1872-1951), he amassed a justifiably famous collection of works by Paul Cezanne, Henri Matisse, Pierre-Auguste Renoir, and other modern masters which he hung—following aesthetic principles greatly influenced by University of Chicago pragmatist John Dewey—in a specially built gallery in suburban Philadelphia. He placed strict limits on the number of people who could view the works and prohibitions on reproductions or loans to other museums.
Depending on how the Montgomery Orphans’ Court near Philadelphia rules later this year, however, Barnes and the foundation he started in 1922 to oversee the collection could be remembered less for their contributions to the arts than for a legal ruling that could further erode the ability of donors to create and protect their legacies.
Anderson, a contributing editor to The American Lawyer, tells much of the tortuous story briskly. Because Barnes apparently did not trust the guardians of the Philadelphia art world—especially the directors of the Philadelphia Museum of Art—to display his collection as he believed it should be shown, his indenture gave control of his foundation to a five-member board, eventually to be selected by Lincoln University, a struggling, historically black school located near his summer home. Lincoln had problems of its own, however, and the school chose trustees—most notably the board president, a Philadelphia lawyer and politician—who wound up taking on costly battles with local officials, neighbors, and one another, fighting over such things as the size of the museum’s parking lot.
As a result, the Barnes Foundation languished, its $6 billion collection of art works starved of the funds needed to maintain them properly. Public access remained curtailed, except for a critically acclaimed but controversial worldwide tour of selected paintings in the 1990s. Allegations of wrongdoing flew repeatedly among the trustees, as well as the governing board of Lincoln University that selected them, leading to mounting legal bills. In the fall of 2002, and after several new appointments, the Barnes board finally petitioned the Montgomery County Orphans’ Court to change the terms of the donor’s will to expand the number of trustees and move the museum downtown, closer to Barnes’ bete noire, the Philadelphia Museum of Art, which with other members of the Philadelphia art establishment seems likely to gain control over the collection.
Since the state-run Lincoln University board now supports this change, the court is likely to rule in favor of it after a hearing scheduled for December. Although the verdict itself will not be binding elsewhere, the considerable attention given the Barnes Foundation case will undoubtedly influence how other jurisdictions treat foundations and trusts.
Plenty of grounds exist for concluding that Barnes established his foundation in ways that now justify court repair. Barnes stipulated, for example, that the small sum left for the upkeep of the enormously valuable art collection be kept only in government bonds, a secure but low-yielding asset. In addition, the museum’s out-of-the-way location and its limitations on visitors make capitalizing on ticket revenues—a principal source of income for today’s art galleries—difficult. A recent court-commissioned audit reinforced the belief of many that the Barnes was poorly governed. Finally, Barnes himself had indicated in his will that if the museum could no longer sustain itself, an “existing and organized institution in Philadelphia or [its] suburbs” should take over its assets, though he did not specify a particular body.
If ever there were a situation that cried out for applying the old trust law doctrine of cy pres, which provides the legal basis for altering wills that prove impractical or unfeasible, the Barnes Foundation would seem to be it. Under this doctrine, however, courts do not have a license to impose their own views of how a donor should have behaved, but rather are supposed to find a way of fulfilling the donor’s objectives as closely as possible. (Loosely translated from Old French, cy pres means “as near as.”) That may prove to be Albert Barnes’ salvation—and a good lesson for today’s philanthropists who wish to avoid similar problems with their own trusts, especially those donors who embody strong opinions about the purposes of their gifts.
Barnes was not simply a well-heeled Philadelphian who used his checkbook to purchase scores of modern masterpieces. He was truly a student of the arts with thoughtfully held and expressed views of how the arts should be understood. (Indeed, his friend John Dewey dedicated his seminal collection of lectures, Art as Experience, to Barnes.) As a result, a tour of the Barnes is unlike a visit to any other contemporary museum. Here, French masters are displayed alongside African primitive sculpture or early-American folk art, and world-famous originals are placed at a distance, thereby limiting close scrutiny. For many steeped in other theories of aesthetics, the way the collection is assembled will undoubtedly seem strange, but it reflects Barnes’ ideas, ones which he (and others) believed were worth serious consideration by subsequent generations of art connoisseurs.
If the Montgomery Orphans’ Court concludes that action is warranted to shore up an organization that has been facing hard times, it will need to deal with the additional challenge of doing so in a way that is faithful not just to the money and board seats involved, but more importantly, to what the Barnes Foundation is really about: art education. Simply locating (or worse, redistributing) Barnes’ collection among Philadelphia’s fine museums, or rearranging the works in ways that may make more sense to today’s curators, could improve access to and support for the paintings, but it would inevitably harm how they were experienced, which was, for Barnes, the principal reason for creating his foundation. Barnes’ collection of art would be preserved, but his legacy may be destroyed.
However it ends, the Barnes saga carries an important lesson. Donor’s wishes may prove difficult to fulfill and may be subject to challenge as years elapse because, among other things, trustees inevitably disappoint, cultural conditions change, and costs rise. Giving careful thought to those wishes, expressing them as clearly as possible during one’s lifetime, and casting them in terms that are specific, but not unnecessarily time- or place-bound, offer at least a chance of liberating long-deceased donors from judicial second-guessing.
Leslie Lenkowsky is on leave from Indiana University, where he is a professor of philanthropic studies and public policy, and a visiting fellow at the American Enterprise Institute.