Virginia SCV Threatens MoC Lawsuit
Some months back it was announced that the new institution formed by the merger of the Museum of the Confederacy and the American Civil War Center at Tredegar, will operate under the name “American Civil War Museum,” with the tagline, ““Confederacy, Union, Freedom.” I like it; unlike most ideas arrived at by committee, this one is clean, concise, and descriptive. I hate cutesy, too-clever-by-half names; by ears bleed every time I hear the word, “Newseum.”
Ever since the collaboration between the MoC and Tredegar was announced, though, there’s been a steady chorus in some quarters about the need to “take back” the artifacts in the Museum of the Confederacy’s collection. Now, more than six months after the merger was announced, the Virginia Division of the SCV has begun soliciting funds to save “our pricesless [sic.] heritage.”
The tagline is “Save the Museum of the Confederacy,” but clearly the intent is nothing of the sort — it’s to use a civil lawsuit to dissolve the what is likely the best single collection of Civil War material outside of the Smithsonian Institution and scatter it to the winds, to a hundred or a thousand people, most of whom never held title to those items before, in the hope of someday reassembling them in a more Confederacy-friendly organization.
So how likely is it that such a lawsuit would be successful? The answer seems to be, “not very.” This seemed like a good opportunity to drag out my old museum law book for reference and, sure enough, the legal rights of donors in cases like this is one of the first topics covered. Most donors, the author argues, would be unable even to demonstrate that they are in a position to claim they are being harmed by the actions of the MoC:Based on this traditional rule that enforcement of charitable trusts is reserved to the Attorney General, donors and heirs of donors usually are denied standing to sue for the enforcement of such trusts. Having made a gift for the benefit of the public, a donor is viewed as having no stronger claim to its enforcement than any other member of the public. With regard to conditional gifts or gifts which reserve a right to revoke or terminate, there is a division of authority as to whether donors, or their representatives, can sue for enforcement. If they are permitted to sue, there is the added question whether they can sue individually in their own names or only with the Attorney General as a consenting party. The Restatement of Trusts favors the view that the Attorney General is necessary party in any such suit, on the theory, perhaps, that a gift to charity, even though conditional, involves a public interest that must be represented. Decisions regarding standing of donors to enforce conditional gifts turn on the particular facts of each case, and it would appear that courts have little trouble in fashioning theories to support desired results. In Amato v. The Metropolitan Museum of Art, for instance, a restricted bequest was made to the museum. The museum had six months in which to accept the gift, otherwise the bequest passed to the donor’s daughter. The museum accepted. Years later, the daughter sued claiming that the museum had not honored the restriction. The court denied relief, one of the grounds being that once the museum accepted the gift, any interest the daughter had in the property terminated. Since the daughter now had no special interest, she lacked standing to sue. Another approach taken by the courts which inhibits donor intervention is the theory that a conditional or restricted gift does not fail just because its terms cannot be followed exactly. For instance, if it proves impractical or impossible to carry out a restricted gift, a museum may seek court approval to alter the restriction in either a cy pres action or a petition for deviation. If the court approves the change, there is deemed to be no failure of the gift because the general charitable intent of the donor is still being effected. If there is no failure, the donor and his heirs have nothing to enforce in court. In Abrams v. The Maryland Historical Society the heirs of a donor sued to prevent the sale of an object given to the historical society claiming that the society accepted the gift with the understanding that the object would never be sold. There was some evidence to support the claim, namely correspondence from individual members of the Society’s board of trustees, and there was no executed deed of gift. The court ruled that the heirs had no standing to sue, stating, “Gifts cannot be presumed to be conditional. Their conditions must be clearly set forth.” 
My emphasis. The author goes on to discuss a handful of unusual cases where the courts granted standing to people representing donor trusts that have donated large sums of money to organizations, but those seem to be the exception rather than the rule. None of the examples given deal specifically with museum collections, whether historical artifacts or artwork.
One phrase we’re likely to hear tossed around in this discussion is cy-près (“as near as possible”), which is a legal doctrine under which a donor trust does something different with its gift than was earlier specified, because the original requirement could not practically be met. The idea is to use the gift in a way that is as close as possible to the original intent. For example, if a person left a bequest in her will to a certain animal shelter, but by the time of her death that shelter was no longer in operation, the executor could cite the cy-près doctrine to obtain permission to donate the funds to a different shelter, in that way remains true to the basic intent of the original bequest, if not the precise letter of it.
One critical aspect of a cy-près action, though, is that every description or example of it I’ve found appears to be one that deals prospectively with gifts or donations that are to be made, rather than withdrawing gifts that have been lawfully made in the past.
We’ll have to wait and see if the Virginia SCV ever actually files a lawsuit on this matter; the last one didn’t go so well. If they do, it will be interesting to see if they cite any specific case law that supports their claim. Maybe there’s something out there I’m not aware of, but otherwise I don’t see how such a lawsuit goes very far.
 Marie C. Malaro, A Legal Primer on Managing Museum Collections (Washington: Smithsonian Institution, 1985), 20-22.