From the WSJ Opinion Archives
LEISURE & ARTS
A Risky End to the Barnes Case
Can donor intent now survive in Pennsylvania?
This week's decision by Judge Stanley Ott of Montgomery County Orphans' Court to approve a request by the trustees of the Barnes Foundation to relocate its multibillion-dollar collection of artworks to downtown Philadelphia from suburban Merion, Pa., would seem to put an end to a decadelong legal battle over the organization's future. But the repercussions may continue to be felt for some time to come.
The court proceedings involved a challenge to the will of the foundation's benefactor, the pharmaceutical magnate Albert C. Barnes, which stipulated that the collection's arrangement embody Barnes's own, unconventional ideas about how art should be viewed. In fact, Barnes looked upon the foundation as more of a school for teaching about art than a museum, and he limited access to it accordingly. But longstanding financial problems, coupled with poor management, endangered its survival.
That is why its trustees, backed by the Pennsylvania attorney general (who is responsible for overseeing charities in the state), sought to move the foundation from the suburbs to become part of a new museum that would be more accessible to ticket-buying visitors. Three Philadelphia foundations also pledged $150 million to help erect a new building and create an endowment for its masterpieces, if the Barnes were allowed to move.
However, art critics, students and other devotees of the Barnes argued that relocating it would not only violate its donor's wishes but also destroy the aesthetic qualities that made it unique and important in the art world. They also claimed that there were ways to solve the foundation's financial problems without moving it.
Judge Ott concluded otherwise, and the likelihood that his view will be appealed is remote. But the outcome of the case is far from settled.
The most immediate problem will be to carry out Judge Ott's order. Not only will a suitable site for the new museum have to be found, but funds for erecting and equipping it will have to be raised. During the trial, doubts were expressed about how much the building would actually cost and whether the money committed by the foundations would be sufficient to pay for it, as well as to provide enough of an endowment for its upkeep.
Becoming part of a new complex in downtown Philadelphia will also increase the foundation's operating costs. Supporters of the move outlined an ambitious program of ticket sales, fund raising, and other money-making efforts to help pay these expenses. But how realistic these plans are, especially for an organization that has had little history of such activities, remains to be seen.
In any case, for worse or for better, there's little doubt that the aesthetic qualities of the Barnes Foundation will be changing. For example, to achieve its ticket-sale targets, the plan approved by Judge Ott reduces the amount of time the collection will be available for study by art students and increases the number of hours for casual museum-goers. Although Barnes left detailed instructions about how to display his art, plans for exhibiting it with works drawn from outside the collection have already been mentioned, much to the dismay of the foundation's devotees. Whether or not one liked the distinctiveness--not to say, quirkiness--of Barnes's theories of viewing art, the chances of being able to encounter them in the same way after the move to new quarters are clearly in doubt.
That sends a cautionary signal not just to those who are collectors, but also to anyone who is considering making a carefully thought-out bequest. Although Judge Ott's ruling is not legally binding beyond the Barnes Foundation case, because of the attention it has received, it cannot help but encourage courts to act more assertively to alter donations that trustees or political officials, such as state attorneys general, regard as antiquated or problematic. Since clear standards of when such intervention might be justified or what remedies might be warranted are often difficult to determine (as in the Barnes case), the potential for overdoing it is great. The result will be not just a good deal of second-guessing about how money set aside for particular charitable purposes ought to be spent, but also greater caution on the part of donors about making unusual or potentially controversial bequests.
In rendering his verdict, Judge Ott indicated that he considered the move to downtown Philadelphia the "least drastic" way of modifying Barnes's bequest to prevent further financial damage to the foundation. Yet, ironically, it may prove to be too big a leap, not just for the Barnes but for philanthropists in general.
Mr. Lenkowsky is a professor of public affairs and philanthropic studies with the Center on Philanthropy at Indiana University.
