In Re: Petition for Modification of Agreement ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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UNITED STATES, on behalf of and for the )
benefit of THE SMITHSONIAN )
INSTITUTION, ) Civil Action No. 17-mc-3005 (TSC)
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Petitioner. )
)
MEMORANDUM OPINION
The United States on behalf of the Smithsonian Institution (“the Smithsonian”) seeks
modification of a 101-year-old agreement under the equitable doctrine of cy pres. For the
reasons set forth below, the court will GRANT the United States’ Petition for Modification of the
Agreement.
I. INTRODUCTION
The Smithsonian was created in 1846 by an act of Congress “for the increase and
diffusion of knowledge among men.” 20 U.S.C. § 41. In 1920, the Smithsonian acquired 2,241
items from the Ward family (“the Ward Collection”), including ethnographic objects that were
collected by Herbert Ward, a British explorer and artist, as well as nineteen bronze sculptures he
had made of the Congolese people (“the Ward Sculptures”). ECF No. 2-2, Arnoldi 1 Decl. ¶ 4.
Four of the sculptures are heroic-sized; six are life-sized; and the remainder are half-sized or
fragments of statues. Id. Each of the heroic- and life-sized sculptures weighs up to 800 pounds
and has a base of up to 250 pounds. Id.The Smithsonian obtained these items through an agreement (“the Agreement”) with
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Dr. Mary Jo Arnoldi has a Ph.D. from Indiana University and has worked for the
Smithsonian’s Department of Anthropology at the National Museum of Natural History as a
research anthropologist and curator for African ethnology since 1984.
Herbert Ward’s widow, Sarita Ward. Id. The Agreement expresses the Wards’ desire that the
Ward Collection be exhibited in a manner such that “its educational advantages and uses might
be properly fulfilled.” ECF No. 1-1, Ex. 1. In accepting the Ward Collection, the Smithsonian
agreed, among other things, that the ethnographic objects and sculptures “shall always be kept
with the rest of the [Ward] Collection,” that the Ward Collection shall “always be kept in a room
or in a reasonably conspicuous part of the building of the Smithsonian Institution,” and that the
Ward Collection “shall be open to the public at all times when the Smithsonian Institution . . . is
so open.” Id. at (a), (f). The Agreement does not contain a “gift over” provision providing for
the alternative disposition of the Ward Collection in the event that the provisions of the
Agreement can no longer be followed. ECF No. 2-3, Pet. Statement of Undisputed Material
Facts ¶ 7.
The Ward Collection was displayed for decades at the National Museum of Natural
History (“the Museum”), a Smithsonian museum along the National Mall in Washington, D.C.
Arnoldi Decl. ¶¶ 2, 5. In 1960, the Museum decided that it was impracticable to permanently
display the Ward Collection. Id. ¶ 6. Accordingly, the Smithsonian filed a petition to modify the
Agreement. Id. On May 9, 1961, the court granted the petition, thereby allowing the
Smithsonian to exhibit the ethnographic objects separately from the sculptures, to remove some
of the ethnographic objects from permanent display, and to display some of the ethnographic
objects along with items from other collections. ECF No. 1-2, Order at (a), (b), (c) (“the 1961
Order”). After the court modified the Agreement, the Museum moved some of the ethnographic
objects to storage. Arnoldi Decl. ¶ 7. Other ethnographic objects from the Ward Collection
were moved to a new exhibition, The Cultures of Africa, and the Ward Sculptures were displayed
in the Rotunda on the first and second floors of the Museum. Id.2
In the late 1980s, the Museum began to renovate its facilities and several older
exhibitions. Id. ¶¶ 7–8. During this period, the Museum also began receiving criticism for the
negative stereotypes of African societies and culture portrayed by the Museum’s African cultural
displays. Id. ¶¶ 8, 21. The Ward Sculptures in particular became the subject of criticism from
both scholars and members of the public. Due to the renovations and growing criticism of the
Ward Sculptures, in 1988 the Museum removed the ten large Ward Sculptures from public
display under the mistaken belief that the 1961 Order relieved the Museum of its obligation to
place all pieces in the Ward Collection on continuous physical display. Id. ¶ 8.
In 1992, the Museum closed The Cultures of Africa exhibition and began planning a new
exhibition, African Voices. Id. ¶ 9. In planning this new exhibition, the curators decided that the
central voices of the exhibition should be African and African American and therefore decided
not to include the Ward Sculptures, many of which depict African societies from a European
perspective. Id. ¶ 21.
In 2014, Timothy Le Grice, a descendant of Herbert and Sarita Ward, contacted the
Museum to inquire why the Museum had removed the Ward Sculptures from public display. Id.
¶ 11. On January 20, 2017, Dr. Richard Kurin, then-Acting Provost of the Smithsonian, sent Le
Grice a letter explaining that the Smithsonian had no plans to physically exhibit the sculptures
but that photographs of the sculptures were available online and that the Museum was planning
to create an online exhibition of the sculptures. Id. at Ex. C.
The United States filed its petition for further modification of the Agreement on
November 13, 2017. It asked the court to release the Smithsonian of its obligation to
continuously display the Ward Sculptures at the Museum or other Smithsonian building, Pet. for
Modification at 11, and filed a motion for summary judgment on March 5, 2018, ECF No. 2,
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Pet.’s Mot. for Summ. J. The court denied that motion on June 26, 2018 and ordered the United
States to file a notice detailing any efforts it made or intended to make to notify the Ward heirs
of the pending petition for modification. ECF No. 3, Order on Pet.’s Mot. for Summ. J. The
United States filed its notice on July 13, 2018, asserting that it is not required to provide such
notice to the Wards’ heirs. Nevertheless, the United States emailed two of the Wards’ heirs with
whom the Museum’s curator of African ethnology has been in contact in recent years to inform
them that the Smithsonian intended to file a petition for modification and published a notice in a
national newspaper. ECF No. 4-1, Decl. of Counsel ¶¶ 2–3, 5.
James Barclay, a great grandson of Herbert Ward, has filed an objection to the petition
for modification, noting that “[t]he Smithsonian has already made one variation in 1961 . . . and
[should] find the necessary space to display the collection of the sculptures.” ECF No. 5-1,
Barclay Decl. ¶ 2. In his view, “[i]t seems that [t]he Smithsonian may[] be attaching too much
importance to a handful of unrecorded complainants that the sculptures are ‘stereo-typical,’ and
therefore should be removed from view.” Id. ¶ 3. In any event, he contends that if the items in
the Ward Collection are placed in storage, the Smithsonian “should also be required to produce a
more comprehensive website showing all the items in the collection in one place.” Id. ¶ 4.
Barclay is not represented by counsel—his filing was submitted to the court by the
Smithsonian. See ECF No. 5, Notice of Filing. Nevertheless, the court construes this filing as a
motion to intervene.
II. ANALYSIS
A. Motion to Intervene
As an initial matter, the court finds that neither Barclay, nor any other of the Wards’ heirs
have a right to intervene. The Agreement does not contain a “gift over” provision providing for
the alternative disposition of the Ward Collection in the event the provisions of the Agreement
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could no longer be followed and so the Wards’ heirs have no reversionary interest in the Ward
Collection. ECF No. 4, Notice; Pet.’s Statement of Undisputed Material Facts ¶ 7; see In re
United States ex rel. The Smithsonian Inst., No. 13-mc-1454, 2019 U.S. Dist. LEXIS 127495, at
*33 (D.D.C. July 10, 2019) (“Unless they include clear language to the contrary, testamentary
gifts do not create reversionary interests.”). Absent a reversionary interest in the property, a
settlor’s heirs do not have standing to intervene in a trust’s application for cy pres. Smithsonian
Inst., 2019 U.S. Dist. LEXIS 127495, at *33. Normally, the D.C. Code requires a petitioner
seeking the application of cy pres to provide notice of a judicial proceeding in compliance with
the applicable rules of civil procedure. See D.C. Code § 19-1301.09(d) (2020). However,
because the Wards’ heirs do not have standing to intervene, the Federal Rules of Civil Procedure
do not require the United States to provide notice. Fed. R. Civ. P. 4.
B. Petition for Modification
The government argues that the court should modify the Agreement because it is
impracticable to comply with the Agreement’s continuous physical display requirement and that
relieving the Museum of its obligation is consistent with the Agreement’s charitable purpose.
Pet.’s Mot. for Summ. J. at 13. It claims that compliance is impracticable for three reasons. Id.
at 14. First, the government asserts that in the one hundred years since the Agreement was
signed, the scope of the Museum’s collection of artifacts has grown significantly, while its
footprint has remained constant. Id. Second, the Museum no longer accepts donations that carry
a continuous physical display requirement. Id. at 14–15. And third, the continuous physical
display of the Ward Sculptures is inconsistent with the Smithsonian’s mission because the
sculptures portray outdated colonial stereotypes. Id. at 15. The government further argues that
because the Ward Sculptures were intended to be used for educational purposes, relieving the
Museum of the continuous physical display requirement and allowing it to exhibit the Ward
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Sculptures online will allow the Museum to provide historical context for the sculptures and
allow the exhibit to reach visitors nationally and internationally. Id. at 17–18.
The court agrees that modification of the Agreement pursuant to the equitable doctrine of
cy pres is appropriate in this case. A court may apply cy pres to modify the substantive
provisions of a trust if (1) the trust has a charitable purpose, (2) compliance with the substantive
provisions of the trust has become unlawful, impracticable, impossible to achieve, or wasteful,
and (3) the proposed modification is as near as possible to the settlor’s charitable purpose. D.C.
Code § 19-1304.13 (2021); Treasurers of the Corcoran Gallery v. District of Columbia, 2014
D.C. Super. LEXIS 17, at *35–36 (D.C. Super. Ct. 2014). Cy pres may also be applied to
instruments like the Agreement, which do not contain words that explicitly create a trust, if the
instrument conveys a charitable purpose. Conn. Coll. v. United States, 276 F.2d 491, 495 (D.C.
Cir. 1960) (“It is generally held that a charitable trust may be created by an instrument which
does not contain words of trust . . . if its language indicates a charitable purpose on the part of the
testatrix.”).
1. Charitable Purpose
The Agreement has a charitable purpose—that the Ward Collection be used to educate
others. An instrument conveys a charitable purpose if the purpose of the donation is to confer a
public benefit. Noel v. Olds, 138 F.2d 581, 585 (D.C. 1943). In making this determination, the
court should construe the language of the instrument liberally. Id. at 584–85 (citing Ould v.
Washington Hosp. for Foundlings, 95 U.S. 303, 313 (1877)).
Here, the Agreement specifies that the items in the Ward Collection be exhibited in a
manner such that “its educational advantages and uses might be properly fulfilled.” Ex. 1.
Educating others is undoubtedly a public benefit, and therefore, the Agreement has a charitable
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purpose.
Although the original version of the Agreement requires the ethnographic objects and
sculptures to be kept “together” to effectuate that charitable purpose, the court found that such
display specifications are incidental to the charitable purpose when it relieved the Museum of
that requirement in the 1961 Order.
The lack of a “gift over” provision in the Agreement is further evidence that the Wards
intended the items be used to benefit the public and that any display requirements were
incidental to the charitable purpose. Cf. In re Elizabeth J.K.L. Lucas Charitable Gift, 261 P.3d
800, 810 (Haw. Ct. App. 2011) (finding presence of a “gift over” provision confirms that the
“settlor only wished to dedicate the property to a specific purpose and, if that specific purpose
failed, to not dedicate it to charity at all”). Therefore, the court may modify the provisions of the
Agreement so long as compliance with the current provisions is unlawful, impossible,
impracticable, or wasteful, and the proposed modifications are consistent with the purpose of
educating others.
2. Impracticability
To establish impracticability, a party must demonstrate that it would be “unreasonably
difficult” to comply with the current provisions of a trust. Treasurers, 2014 D.C. Super. LEXIS
17, at *38–39. A court may not modify the current provisions merely to “meet the desire and
suit the convenience of the trustee.” Conn. Coll., 276 F.2d at 497. However, it may find that
compliance with the current provisions is impracticable “even where it is not a literal
impossibility.” In re United States ex rel. The Smithsonian Inst., No. 13-mc-1454, 2019 U.S.
Dist. LEXIS 127495, at *42 (D.D.C. July 10, 2019).
Compliance with the provision of the Agreement requiring that the Ward Sculptures
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“always be kept in a room or in a reasonably conspicuous part of the building of the Smithsonian
Institution” is impracticable. Ex. 1 at (a). Compliance with the Agreement is “unreasonably
difficult” in light of the Museum’s space constraints, the Museum’s own policies, contemporary
museum practices, and the content of the sculptures.
The Museum’s exhibition space is limited. Over the past century, the Museum’s
footprint has essentially remained the same, while its collection of artifacts has grown
significantly. Arnoldi Decl. ¶ 17. Moreover, because ten of the nineteen Ward Sculptures are
heroic- or life-sized and weigh over one thousand pounds, the sculptures occupy a relatively
large portion of the Museum’s limited real estate. Dedicating such a significant amount of space
to one collection prevents the Museum from displaying other items that reflect the evolution of
cultural and societal concerns. Id. Displays that reflect such concerns are critical to the
Smithsonian’s mission—promoting the “increase and diffusion of knowledge among men.”
20 U.S.C. § 41. The Museum cannot simultaneously comply with the Agreement and properly
effectuate its mission without additional exhibition space. Thus, although it is possible to
physically display the Ward sculptures in perpetuity, compliance with such a requirement would
be “unreasonably difficult” and be to the detriment of the mission assigned to the Smithsonian by
Congress.
The provision also conflicts with the Museum’s current policy not to accept any
donations that carry a continuous physical display requirement. When a provision of a trust
conflicts with the trustee’s own policies such that enforcement of the provision would interfere
with the trustee’s mission, compliance with the provision may be impracticable. See United
States ex rel. United States Coast Guard v. Cerio, 831 F. Supp. 530, 535, 540 (E.D.V.A. 1993)
(finding enforcement of a trust providing an annual award between $65,000 and $130,000 to a
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single cadet, far exceeding the trustee’s policy to provide awards of up to $300, would interfere
with the trustee’s mission to educate and instill a “high sense of honor, loyalty and obedience”).
As discussed above, the Museum’s mission is to educate its visitors, and exhibitions that reflect
contemporary cultural and societal concerns are necessary to accomplish that goal.
Consequently, enforcement of the Agreement which requires the Museum to continue to display
a collection which has already been exhibited for nearly a century interferes with the Museum’s
mission and is therefore impracticable.
The burden imposed by a continuous physical display requirement given the Museum’s
space constraints and the size of the Ward sculptures is exacerbated by contemporary museum
practices and the content of the sculptures.
When a provision in a trust conflicts with an industry practice, cy pres may be applicable.
Smithsonian Inst., 2019 U.S. Dist. LEXIS 127495, at *59–60 (finding enforcement of a provision
requiring a particular collection of insects to be kept separately from other specimens of that
species, in contradiction of industry practice that requires specimens to be arranged
taxonomically, to be “wasteful” because it forced researched to make double the number of trips
to retrieve specimens and used extra storage space). Here, requiring the Smithsonian to comply
with the Agreement in light of existing industry practices is “unreasonably difficult.”
Contemporary museum practice requires that museums supplement their exhibitions with
“stories, context, and relevance.” Arnoldi Decl. ¶ 18. The need to provide context for the Ward
Sculptures is particularly important given that the sculptures reflect early twentieth century
European social and scientific attitudes toward African societies that “classified Africans as
‘savages’ in a state of social, artistic, and religious backwardness.” Id. ¶¶ 1, 20. However,
museums require additional exhibition space to provide such supplemental information, and it is
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impossible to provide sufficient context to address the negative stereotypes portrayed by the
Ward Sculptures given the Museum’s space constraints. Id. ¶ 13. If the Museum were to display
the Ward Sculptures without providing such context, the exhibit would not reflect contemporary
cultural and societal concerns and would therefore be inconsistent with the Museum’s mission.
Consequently, it is “unreasonably difficult” to comply with both the continuous physical display
requirement specified in the Agreement and contemporary museum practices.
A continuous physical display requirement also conflicts with the contemporary museum
practice requiring exhibitions to be “regularly rotated and updated.” Arnoldi Decl. ¶ 18.
Continuously displaying the Ward Sculptures, rather than rotating them with other exhibitions,
violates this practice and again interferes with the Museum’s mission for the reasons discussed
above.
For the foregoing reasons, the court finds that compliance with the Agreement’s
provision requiring continuous physical display of the Ward sculptures is impracticable.
3. Proposed Modifications
A court may only modify a provision if the proposed modification is as near as possible
to the settlor’s charitable purpose. D.C. Code § 19-1304.13 (2021). Relieving the Museum of its
obligation to physically display the Ward Sculptures in perpetuity and instead permitting the
Museum to display the sculptures online is consistent with the Wards’ intent that the sculptures
be used for educational purposes. Displaying the Ward Sculptures online still enables their
“educational advantages and uses [to] be properly fulfilled.” Ex. 1. An online exhibition
provides visitors with access to more material than otherwise possible if the Ward Sculptures
were displayed at the Museum because an online exhibition, unlike a physical exhibition, is not
subject to space constraints. Therefore, by creating an online exhibition of the Ward sculptures,
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the Museum can provide the necessary historical context to explain that the sculptures portray
outdated, colonial stereotypes of African persons in addition to supplemental information about
Herbert Ward’s life. Arnoldi Decl. ¶ 13. Moreover, virtual visitors from across the globe will
have the opportunity to view the Ward Collection because an online exhibition allows the
Museum to reach more people than a physical exhibition. Therefore, allowing the Museum to
display the Ward sculptures online is as near as possible to the Wards’ intent that the sculptures
be used for educational purposes.
III. CONCLUSION
For the reasons set forth above, the court will GRANT the United States’ Petition for
Modification of the Agreement.
Date: August 2, 2021
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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