Hispanic Society of America’s main court, with Goya’s “The Duchess of Alba,” 1797, at right (on lower level)The duchess of Alba, 1797
Photo by Lee Rosenbaum
In yesterday’s post on the Hispanic Society of America’s deplorable disposal of virtually its entire coin collection (some 37,895 pieces), I asserted that the coins’ donor, HSA founder Archer Huntington, had surely never envisioned the sale of this trove.
How do I know how Huntington (who died 56 years ago) would have regarded this disposal of holdings for which he had special affection, because they constituted the very first of the many collections that he eventually assembled?
Let’s go to pp. 3-4 of Huntington’s 1907 trust indenture governing his benefactions to the HSA:
While Huntington did not impose a sale prohibition specifically on the coins, he did state in the trust indenture that his grant to the society was made “only upon condition [emphasis added] that neither the said Board of Trustees [of the Hispanic Society] nor their successors shall grant, convey, assign, transfer or set over any of the real or personal property” received in Huntington’s 1907 grant “or otherwise.” With only a few modest exceptions—the HSA’s own publications and “personal property of inconsiderable value”—Huntington forbade transfers of such property to any “library, corporation, institution or person, whomsoever or whatsoever.”
To make sure that the HSA trustees got the message, he included this penalty clause: “If said condition shall in any manner be broken, …this grant shall…be void and of no effect, as if it never had been made, and the said Trustees [of the Hispanic Society] or their successors shall give up and surrender quietly and peaceably the property hereby granted to the heirs, executors or administrators of said Archer Milton Huntington” or, failing that, to “various institutions of learning in Spain.”
The trust indenture does not specifically mention Huntington’s collection objects as part of the restricted “personal property” (although it’s hard to imagine that they were not the chief subject of this stricture), nor does it clarify whether the phrase, “or otherwise” refers merely to Huntington’s prior benefactions (contained in a 1904 trust indenture), or also to future gifts. (The coins were donated later.) But because the HSA never took the prudent step of seeking court approval for its major sell-off, it never got a judge’s ruling as to whether the indenture’s language constituted a no-sale stipulation by the donor.
From the evidence of both his passion for the numismatic collection (which, for a while, he attempted to catalogue himself) and his designation and funding of a distinguished scholar, George Miles, to catalogue and publish the collection professionally, under the auspices of the American Numismatic Society (where he had deposited the coins, in 1949, on long-term loan), it appears that Huntington, if alive, would have interposed his imposing frame between any auctioneers and his beloved coins.
“The Coinage of the Visigoths of Spain,” one of four volumes produced by George Miles, the scholar engaged by Archer Huntington to study and catalogue his extensive coin collection
Photo by Lee Rosenbaum
One entity that did oppose the dispersal in court was the American Numismatic Society. In a State Supreme Court brief, the ANS argued that if the sale went forward, a “world-renowned coin collection, created over decades and of inestimable value to scholars and historians would be ripped asunder.” With the full knowledge of the HSA, the ANS in 1956 had integrated the Huntington trove with the related pieces in its own collection of some 850,000 coins and medals.
But Huntington had stipulated in writing that the HSA could recall the coins at any time. Losing the legal battle and declining to appeal, the ANS reluctantly relinquished them. Its years of scholarship, cataloguing and care, initially underwritten by Huntington himself, devolved into a Sotheby’s selling tool—a USB drive sent to potential bidders that contained a spreadsheet with information on each coin that the ANS had painstakingly compiled.
Inexplicably, the ANS’s lawyers never obtained a copy of the trust indenture and therefore never invoked its provisions. But an important watchdog of nonprofits did have a copy readily available—the Charities Bureau of the State Attorney General’s office. I know this because, upon my request, the bureau supplied me with that public document.
So why didn’t the AG, responsible for defending the donor’s and the public’s interests in objects held by museums in the public trust, intervene to stop a sale that seemed to deviate from the trust indenture’s stipulations?
After our long conversation about this situation, which Jason Lilien, chief of the AG’s Charities Bureau insisted be kept off the record, he released to me a statement for publication.
Jason Lilien, Charities Bureau chief, New York State Attorney General’s office
Here’s the full statement that Lilien gave me:
The Hispanic Society did not obtain court approval of the sale. New York law requires court approval when a donor imposes a restriction on a sale and the donor is not available to consent to releasing the restriction.
Jason Lilien, Bureau Chief of the New York State Attorney General’s Charities Bureau (which oversees nonprofits), said that the Hispanic Society informed the Attorney General’s Office that the Society would not be seeking court approval because the coin collection was not subject to a donor restriction preventing the sale. Mr. Lilien added, however, that the Charities Bureau would review the sale “if we had reason to believe that a law was violated or new facts came to our attention.”
Wait a minute! The AG’s office decided not to intervene because the HSA had chosen not to take the prudent (and, to my mind, essential) step of seeking court approval for its disposal, notwithstanding the no-sale language in the trust indenture? No one who has read that language (quoted above) can be fully confident that “the coin collection was not subject to a donor restriction preventing the sale.”
One might conceivably try to argue that the trust indenture’s language is somewhat ambiguous. The chief question that could be raised is whether “or otherwise” refers to future gifts. I’d say yes, but legal language-parsers may differ.
This much seems certain, however: The determination of whether a sale could properly go forward should have been made by an impartial judge, not by the institution that was intent on filling its coffers. If the institution didn’t seek clarification from the courts, the AG’s office should have made its own determination or, if necessary, gone to court for a ruling. Instead, it basically deferred to the would-be seller’s analysis.
This is yet another instance (like the New York Public Library’s 2005 sale to Alice Walton of Asher B. Durand‘s “Kindred Spirits”) where the New York Attorney General’s office has behaved more like a lapdog than the public’s watchdog.