A Perpetuity Puzzle in the Art Museum
Eliette Albrecht
In 1899, Isabella Stewart Gardner purchased a strip of marshland to house the Isabella Stewart Gardner Museum in Boston. Ninety-one years later, the Gardner hosted the most infamously expensive museum heist ever—$500 million worth of art including a Rembrandt seascape, Degas sketches, a Vermeer, and ancient Chinese pottery was stolen over St. Patrick’s Day weekend in 1990. Despite a Netflix documentary and substantial increases of reward money, the trail remains frigid. To this day, the museum has empty spaces where the art once was, “placeholders” representing the hope that the paintings will return.
There is a more practical reason why the museum cannot rearrange the pieces—because Gardner’s will, probated in 1924, strictly articulates that if the art is moved, the entire collection is to be given to Harvard College.
But when you die and your property passes on, the new owners are supposed to be able to transfer it, lease it, or sell it—a right to alienation. To understand if Mrs. Gardner’s will is an impermissible restraint on alienation, it helps to look at two cases: Smedley v. City of Waldron from the Eighth Circuit and Marsh v. Alabama in the Supreme Court.
In Marsh, a woman was arrested for trespassing on private property when she was handing out pamphlets for a religious group. That “private property” was a sidewalk in a company town. Normally, private actors can dictate certain rules in their own spaces, even against free speech. The company town looked like any American town: it had a U.S. Post Office, a main street with shops, was close to a public highway, and anybody could freely enter. But the Supreme Court applied a rule that “[t]he more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.” The Court held that the woman’s trespassing charge was reversed because she was exercising her free speech in a way that would have been lawful in a regular town, subject to the Constitution. Impeding her speech violated the First Amendment—even if the town was technically private, it was acting so public that it became public.
In Smedley, a town needed water from a private reservoir. A woman who owned the reservoir leased it specifically for the city to provide water to its residents. Some years later, the city attempted to the sell the reservoir; her descendants wanted the reservoir back. At issue was whether the condition on the “gift” of the reservoir being used only for public purposes was an impermissible restraint on alienation by the now-deceased grantor. While restraints on alienation are typically void, the court held that it was valid for a private grantor to give something to a public entity to use only for a public purpose. So restraining how someone used a grant was acceptable if the grant was “to a governmental unit for a public purpose” (and the donor’s descendants got the reservoir back when the city acted inconsistently with the grantor’s intent).
What can Marsh and Smedley tell us about how permissible it is that the Gardner can’t touch the empty frames? First, we must determine if the museum is an almost-government-unit, like the company town in Marsh. Instinctively, this seems similar. Mrs. Gardner set up her museum for the public to enjoy the pieces she collected. For something as innately human as art, it seems unthinkable to permit private control—the way the town in Marsh was forbidden from limiting speech. But the town in Marsh was indistinguishable from a regular American town; the standard for “becoming” a public actor is very high. Although admission to the Gardner lets you see the entire museum, and it is close to a public road, the Museum requires payment for admission, and it cannot be honestly confused for a government building. It’s also not the only art museum in the city—Mrs. Gardner is not monopolizing Bostonians' access to art.
So, the Gardner isn’t a public entity—in fact, it’s private. It provides a gift from a private actor to a private recipient; if the public is willing to pay admission, the private recipient (the museum) allows the public to enter and view the art. That seems a lot more like the situation in Smedley, and the Eighth Circuit was much more willing to permit gifts with strings attached in that case. Mrs. Gardner is the private grantor (like the woman who gave the reservoir). She is gifting art—which has a public feel to it, if not based in human emotion, then at least by the terms of her promise, for the museum to be for the public to enjoy her art “forever.” That gift is going to a museum, a private entity—but the ultimate beneficiaries are the public. Stretching the Smedley rule to cover private control over private artwork feels okay—maybe because we, the public, get to benefit from that artwork.
But that’s still a stretch. Private actors can exert significant and sometimes nefarious control in the name of public good. How do we balance letting someone retain dead-hand control with the fact that it’s a faux pas for a gift to come with strings attached? Who gets to decide what control is benign, and what is beyond the pale?
Perhaps it’s okay to let this art be controlled because it’s a private gift to a private museum, but retains the aspect of public consumption, more like Smedley, rather than a private entity that is essentially public, like the city in Marsh. The museum isn’t public “enough” to justify application of the Marsh rule, but we receive enough public benefit that we stretch Smedley to cover the Gardner.
As with so much of property, a lot of this comes down to instincts, and the Gardner provides an emotional component. Even if the primary reason the frames can’t be moved is legal, the art was stolen from a place that shares art with everyone—so it was stolen from us too, in a way. Perhaps Isabella Stewart Gardner’s wishes are acceptable because we know the context: her passion for art and the history of the heist. After all, we can view the art upon paying a small entrance fee with the only condition being to leave it as is—those conditions don’t seem very fraught.
The rule against restraints on alienation might not be as sweeping as we think, but its exceptions should apply narrowly. In a way, the thieves who took the art from the Gardner are controlling it too—which isn’t fair, just, or legal. What they did goes against the wishes of the owner, but also against us, who previously had the right to view the art. If our human right to consume art is controlled by a deceased person, and that control specifically promotes consuming the art, maybe that control isn’t so bad. The rule is, after all, flexible—because the thieves technically broke the terms of the will, the art should have been shipped off to Harvard already. But it remains in the Gardner, waiting for us to walk in and view it, as Mrs. Gardner wanted.
Eliette Albrecht is a first-year law student at the American University Washington College of Law.
Image: Rembrandt, Christ in the Storm on the Sea of Galilee .
