NO. 58,788

THE BARNES FOUNDATION, A CORPORATION

OTT, J. SEPTEMBER 21, 1995

On April l, 1992, the Board of Trustees of the Barnes Foundation filed the instant petition seeking certain amendments or clarifications to the trust indenture and agreement executed by and between Dr. Alfred C. Barnes and the Barnes Foundation under date of December 6, 1922, as amended. The procedural history of this matter was set forth at great length in this Court's July 10, 1995 Opinion and Order sur Petition to Approve Settlement and sur Petition to Amend Trust under Will, and need not be reiterated. At issue presently are the Foundation's requests for changes in certain provisions of the indenture which, the Trustees allege, have "over the years either been misconstrued or become impracticable and have caused or will soon cause the frustration of the intent of the Foundation as expressed in the Indenture and make it fail of its essential purpose." (Paragraph 15 of the Second Amended Petition to Amend Trust.) Hearing on the proposed amendments or clarifications was held on September 13 and 14, 1995.

The first matter explored at the hearing was the Barnes Trustees' request to be relieved of the limitations set forth in Paragraph 27 of the indenture which restricts their investment authority to "obligations of the United States of America, obligations of the several States of the United States and municipal corporations and districts of the several States of the United States which are legal investments for saving banks under the law of the State of New York." The Trustees allege that the returns realized by this investment policy have failed to keep pace with inflation and with their operational costs. They ask that the indenture be amended to permit them to make all investments authorized by Chapter 73 of the PEF Code. No opposition was offered to this proposal by any of the parties. Upon consideration of the request, the court finds that adherence to the restrictions imposed by Dr. Barnes is impractical, and granting the Trustees' request is appropriate under section 73 19(b) of the PEF Code.

The second amendment sought by the Trustees involves the price of admission to the Foundation's gallery and arboretum in Merion, Pennsylvania. The indenture empowered the Trustees 'to make such rules and regulations as will ensure that the plain people, that is, men and women who gain their livelihood by daily toil in the shops, factories, schools, stores and similar places, shall have free access to the art gallery and the arboretum upon those days when the gallery and arboretum are to be open to the public." (Paragraph 30 of the indenture.) (Emphasis added.) By decree dated March 29, 1963, the Honorable Alfred L. Taxis, Jr., of this Court authorized the Board of Trustees to charge an admission fee "not in excess of one dollar per person to all members of the general public ...."

The Second Amended Petition to Amend Trust asks that the Trustees now be granted permission to set the admission fee at their own discretion. At the hearing, the President of the Foundation's Board of Trustees, Richard H. Glanton, Esquire, testified that it is the Board's present intent to charge a $10 fee to the general public, which sum would include a mandatory audio tour of certain of the works in the gallery. Mr. Glanton also stated that the Board plans to charge $7 for student admissions. Individuals who are enrolled in the Foundation's art program will enjoy free admission to the gallery. Mr. Glanton also explained the Foundation will permit indigent people to be admitted at no charge on Tuesdays.

The Foundation also presented the testimony of Anne d'Harnoncourt, the Director of the Philadelphia Museum of Art, to the effect that $10 is a reasonable charge for the chance to see this world-class art collection. Ms. d'Harnoncourt noted that the Philadelphia Museum charges $7.50 for general admission.

The de Mazia Trustees and the Friends of the Barnes Foundation oppose the Foundation's entrance fee proposal on the grounds that $10 is too much, and that the audio tour should not be mandatory.

The Court agrees that a tenfold increase in the current price of admission is excessive. Dr. Barnes' goal of free access has had to yield to the charging of an admission fee, due to economic realities. However, the instant proposal would likely discourage "the plain people," i.e., the working class whom Dr. Barnes most wanted to view his collection, from visiting the gallery. The Court finds that an appropriate balance -- between the need to generate funds for the Foundation and the need to keep the fee within the reach of the average citizen -- will be struck by approving an admission of $5 for the general public. The audio tour shall be separate and optional and available at a reasonable cost to be determined by the Trustees. The Trustees are also authorized to use their discretion in setting a reduced fee for student admissions.

The third issue sub judice involves the public hours of access to the gallery. Dr. Barnes' indenture provided for the gallery to be open to the public on Saturdays only. In 1958, the Office of the Attorney General as parens patriae brought an action in this court to force the then officers and trustees of the Foundation to permit the public into the gallery in accordance with the terms of the indenture. The litigation was eventually resolved by way of a consent decree dated December 12, 1960, wherein Judge Taxis approved public admission on Saturdays and one other day a week. By decree dated February 24, 1967, Judge Taxis further expanded the public hours by opening the gallery on Sunday afternoons.

The Second Amended Petition to Amend Trust asks that the indenture be amended to give the Trustees full discretion in setting the gallery's hours of operations. At the hearing, Mr. Glanton testified that the Board wishes to open the gallery to the public every day of the week from 10:30 a.m. or 11:00 a.m. until 5:30 p.m. or 6:00 p.m., except on Mondays when the facility will be closed to the public. He stated that the art education classes will be held on Mondays, and before and after the public hours on the other days of the week. Mr. Glanton indicated that he could not supply the court with any specifics about the classes because the details have not yet been worked out.

The Attorney General's Office expressed its approval of the Trustees' proposed schedule of hours. The de Mazia Trustees and the Friends of the Barnes Foundation oppose this broad expansion because of its anticipated adverse impact upon the educational program. The Barnes Trustees answer first that the art curriculum will not suffer, and second that allowing more people to view the collection is itself an educational process within the scope of Dr. Barnes' indenture. These divergent views frame the philosophical chasm between the Foundation and its opponents, which was discussed in detail in the Court's July 10, 1995 Opinion and Order Sur Petition to Approve Settlement and need not be revisited at this juncture. For present purposes. it will suffice to say that the Trustees' proposal would transform the Foundation into a full-time museum, which goes far beyond the donor's intent. To accommodate the competing interests, the Court finds it appropriate to permit the public access to the gallery on one additional day per week. This will give the Trustees flexibility in the scheduling of the art education classes, and should provide the students adequate time with the paintings (outside of the class setting) when the public is not present.

The final issue before the court is the Trustees' request to amend or clarify the following language of Paragraph 33 of the indenture:

The purpose of this gift is democratic and educational in the true meaning of those words, and special privileges are forbidden. It is therefore expressly stipulated by the Donor that at no time after the death of said Donor, shall there be held in any building or buildings any society functions commonly designated receptions, tea parties, dinners, banquets, dances, musicales or similar affairs, whether such functions be given by officials, Trustees or employees of The Barnes Foundation or any other person or persons whatsoever, or whether such functions be private or public. It is further stipulated that any citizen of the Commonwealth of Pennsylvania who shall present to the courts a petition for injunction based upon what reputable legal counsel consider is sufficient evidence that the above-mentioned stipulation has been violated, shall have his total legal expense paid by The Barnes Foundation.

The Trustees ask the Court to approve the following provision in lieu of the above:

The purpose of this gift is democratic and educational in the true meaning of those words, and special privileges are forbidden. It is therefore expressly stipulated by the Donor that at no time after the death of said Donor, shall there be held in any building or buildings any society functions, commonly designated receptions, tea parties, dinners, banquets, dances, musicales or similar affairs, whether such functions be given by officials, Trustees or employees of The Barnes Foundation or any other person or persons whatsoever, or whether such functions be public or private. The foregoing does not prohibit the Barnes Foundation through its Board of Trustees from organizing, sponsoring and hosting functions on Barnes Foundation property for the sole benefit of the Barnes Foundation to enhance the Foundation's fund raising efforts and support its operational needs. (Emphasis added.)

The Office of the Attorney General expressed its support of the Trustees' suggestion. The Trustees argue that the fund raising activities they hope to hold, on the Foundation's property do not fall within the parameters of the "society functions" prohibited by Dr. Barnes. The Trustees' planned functions include a special viewing of the renovated gallery and a dinner at the Foundation for 400 to 500 guests already scheduled for November 11, 1995. The Court is not persuaded. The Foundation established at the hearing that its development strategy would be to stage events geared toward attracting future benefactors, i.e., potential corporate and individual donors. To state the obvious, there would be nothing "democratic" (Dr. Barnes' word) about the guest lists. Those not in a position to make a pledge to the Foundation would not be invited. It is clearly not possible to reconcile the Trustees' proposed clarification with the intent of Dr. Barnes in Paragraph 33 of the indenture.

There being no basis for allowing a "clarification" of the trust indenture, the Court must next consider the possibility of permitting the Trustees to deviate from the trust provision. Section 381 of the Restatement of Trusts (Second) states:

The court will direct or permit the trustee of a charitable trust to deviate from a term of the trust if it appears to the court that compliance is impossible or illegal, or that owing to circumstances not known to the settlor and not anticipated by him compliance would defeat or substantially impair the accomplishment of the purposes of the trust.

Mr. Glanton and Mrs. Aldridge, the Vice President of Fund Raising at the Philadelphia Museum of Art, both testified that it is desirable and productive to have on-site fund raising events. They gave the impression that "everyone" is doing it, and that potential donors expect and like to be feted at the site where their dollars will actually be used. They indicated that not having on-site festivities makes fund raising more difficult. However, the Trustees did not establish that it will be impossible for them to raise adequate funds if they can not entertain on the Foundation's own premises, which is the prerequisite for applying the doctrine of deviation. There are alternate methods of fund raising, which the Trustees have just begun and must continue to explore. Apart from the fruits of the future efforts of the Foundation's development staff, additional revenue will be generated by the increased admissions to the gallery at an increased costs as approved herein.

In light of the foregoing, the following Decree is appropriate.

DECREE

AND NOW, this 21st day of September, 1995, after hearing, it is hereby ORDERED,

ADJUDGED and DECREED that Paragraph 27, of the trust and indenture executed by and between Dr. Alfred C. Barnes and the Barnes Foundation under date of December 6, l922, as amended, is amended to read as follows:

27. During Donor's lifetime moneys available for investment or reinvestment, whether principal or income, may be invested in any good securities whether legal investments for Trustees or not; but after Donor's death, such moneys must be invested by Donee in accordance with the investment powers and privileges of fiduciaries under Chapter 73 of the PEF Code.

Paragraph l0 of the decree of this Court dated March 29, 1963, is hereby amended to read as follows:

10. The Board of Trustees shall be authorized to charge an admission fee not in excess of five dollars per person to all members of the general public (excepting students formally enrolled in the Foundation's classes and their instructors), who shall be admitted to the Art Gallery under the visiting program prescribed in the consent decree dated December 12, 1960, the decree dated Feburary 24, l967, and the decree dated September 18, 1995.

It is further DECREED that the Barnes Foundation's present program of admission of the public to its art gallery, pursuant to the consent decree of this Court entered December 12, 1960, and amended by Decree dated February 24, 1967, is modified and enlarged to authorize and direct the Trustees of the Barnes Foundation to open the art gallery one additional full day per week.

In all other aspects, the provisions of the trust indenture (including the prohibition against society functions at the Foundation) and of the previous decrees of this court shall remain unchanged and of full effect.

This is a final Decree not subject to the filing of exceptions.