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Sleeping Watchdog Awakes! Attorney General Speaks Up on Behalf of Cole Landscape at Seward House


Jason Lilien, chief of Charities Bureau, NY State Attorney General’s Office

Did he really say that?

In connection with a case that is scheduled to be heard in court tomorrow, the NY State Attorney General’s office, in sharp contrast to its silence on the Hispanic Society of America’s coin sell-off and the New York Public Library’s American paintings disposal (which included Asher B. Durand‘s celebrated “Kindred Spirits”), has issued a strongly worded letter signed by Jason Lilien, its Charities Bureau chief, defending donor intent. (Details of his letter, later in this post.)

At issue are announced plans to sell Thomas Cole‘s “Portage Falls on the Genesee,” valued in 2008 at $18 million:


Thomas Cole, “Portage Falls on the Genesee,” 1839

This painting had been displayed at Seward House, Auburn, NY, ever since it was given pride-of-place by that historic property’s illustrious resident, William H. Seward, New York Governor and later U.S. Secretary of State under President Lincoln. Commissioned from Cole as a gift to Seward, it captured a sublime landscape that was about to be altered by the construction of the Genessee Valley Canal, a public works project overseen by the Governor.

You can see the painting, reflected in the mirror over parlor’s fireplace, in this image from Seward House’s website:


Last February, “Portage Falls” was removed from what is now called the Seward House Museum to an undisclosed location. That institution announced on Aug. 12 that it had filled the empty space with a “museum quality” replica.

The would-be seller, the Fred L. Emerson Foundation, received Seward House and its contents in a 1951 bequest by Secretary Seward’s grandson, William H. Seward III. The grandson’s will instructed the foundation to preserve and maintain both the house and its contents. In 2008, the foundation transferred that property, except for the Cole (in which it retained ownership), to the newly constituted museum. Proceeds from the sale (to be handled by Christie’s, according to Robin Pogrebin‘s Mar. 17 NY Times article) would be “apportioned to the Seward House and the Emerson Foundation,” according a letter written by Daniel Fisher, president of the Seward House Museum.

Tomorrow’s court hearing was prompted by a petition seeking a permanent prohibition of the sale of the Cole, filed last month in Cayuga County Court by Ray Messenger, great-great-grandson of Secretary Seward and administrator of Seward III’s estate.

Included with Messenger’s petition as “Exhibit F” is Jason Lilien’s strongly worded June 20 letter, under the Attorney General’s letterhead, to Anthony Franceschelli, president of the Emerson Foundation. Lilien noted that the foundation had “accepted [Seward III’s] bequest on the stated terms”—to maintain the property (in the words of Seward III’s will) “as a memorial for…[Secretary] Seward…together with all articles of furniture, furnishings, portraits, paintings, books and souvenirs thereon” [emphasis added by Lilien].

Lilien added that the transfer of Seward House’s property in 2008 did “not alter the Foundation’s obligations under the Will to maintain and support the Seward memorial.” The Sept. 30, 2008 Surrogate Court permission for the transfer of the house’s property to the newly constituted Seward House Museum “directed that the [Cole] Painting ‘not be transferrred to any person or entity other than Seward House Museum without first obtaining leave of the court,'” Lilien noted.

Although no such court permission has been obtained, the painting has left the building.

Here’s the kicker from Lilien:

A review of the Foundation’s most recent…tax return on file with this office shows that the Foundation is financially able to continue to provide the necessary financial support for the memorial.  Accordingly, we do not see any justification for the sale of the Painting or why the Painting has not yet been transferred to the Seward House Museum.

I cannot help but wonder what makes this blatant disregard of donor intent any different from that of the Hispanic Society of America’s sale through Sotheby’s last year of some 37,895 coins given to it by HSA’s founder, Archer Huntington. In his trust indenture, Huntington forbade transfers of his HSA gifts to any “library, corporation, institution or person, whomsoever or whatsoever.”

Yet Lilien (contacted by me for this post on the coin sale) saw no reason to criticize the Hispanic Society’s sell-off. Several months ago, Huntington family members submitted to the Charities Bureau a protest, with documentation, regarding the coin sale, asking for a review of that disposal and for judicial oversight. A Huntington family member recently told me that, to his knowledge, there had been no action on this from the AG’s office.

After several e-mail exchanges over the last four days, the AG’s office late this afternoon finally told me this in reply to my requests for comment regarding both the Huntington coin and Seward painting situations:

We are declining comment.

Here’s what I had asked, after mentioning that I knew about the Huntington family’s initiative:

—Have you performed any further review of the Huntington coins disposal since we last spoke about this?

—If so, what is the nature of that review, why was it undertaken, and what, if anything, may come of it?

—Why did you see fit to intervene in the Seward case, but not in the Huntington case? In other words, what do you see as the crucial distinctions between these two situations?

Before being denied a substantive reply, I had been repeatedly asked by a press officer if I was writing for the blog or another (more illustrious?) publication. With my long track record as a widely read, deeply knowledgeable arts blogger, broadcast commentator and writer for top mainstream-media publications, I would have hoped that I could count on respectful treatment, no matter where my work happened to be published, from a government agency whose mission it is to defend the public interest.

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