The Battle Between the Settlor’s Intent and the Trustee’s Discretion

Heinrich Schweizer (Visiting Researcher, Harvard Law School) has recently published his article entitled Settlor’s Intent vs. Trustee’s Will: The Barnes Foundation Case, 29 Colum. J.L. & Arts 63 (2005). 

Here is the summary of the article as provided by Lexis:

“In the world there is not, and will never again be, a comparable collection of masterpieces by the two greatest painters of the nineteenth century, Cezanne und Renoir,” the great Parisian art dealer Ambroise Vollard said in 1936. … In contrast, substantial changes are solely possible under the Doctrine of Cy Pres: “If property is given in trust to be applied to a particular charitable purpose, and it is or becomes impossible or impracticable or illegal to carry out the particular purpose, and if the settlor manifested a more general intention to devote the property to charitable purposes, the trust will not fail but the court will direct the application of the property to some charitable purpose which falls within the general charitable intention of the settlor. … Second, the interdiction of changing the placement and arrangement of the artworks after the death of Albert C. Barnes and his wife is expressed through a series of coherent, not isolated, provisions: Barnes was Director of the gallery during his lifetime and had “absolute power and discretion” to cause the Foundation to buy, sell or exchange “any works of art now contained in [its] collection. … Therefore, relocation of the art collection affects a substantial, rather than an administrative, change and should be decided under the Doctrine of Cy Pres rather than the Doctrine of Deviation.