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Smithsonian Gets Cy Pres Power To Modify Display Requirement for Collection

Smithsonian Gets Cy Pres Power To Modify Display Requirement for Collection

Court allows Institution to display statues online instead of physically in museum facilities

When the widow of British explorer and artist Herbert Ward gave the family collection of 2241 ethnographic objects, including 19 bronze sculptures of Congolese people, to the Smithsonian Institution in 1920, she included a requirement in the agreement that the collection be kept together and that the sculptures be displayed in a room or “reasonably conspicuous part” of the building open to the public “at all times.”

In 1960, the Smithsonian decided it was impractical to keep the collection together on permanent display and obtained court permission in 1961 to remove some of the items from permanent display and separate the sculptures from the rest of the collection.  In the late 1980s, the Smithsonian began receiving criticism of the sculptures and, in the mistaken belief that the 1961 court order permitted it, removed some of the sculptures from public display.  In 1992, the museum closed the display and created a new one on Africa without the sculptures.

In 2014, a descendant of the Wards inquired why the museum did not have the sculptures on display.  In 2017, a representative said it had no intent to physically display the works, but did exhibit photos of them online and planned a fuller online exhibition.  It filed for court relief later that year and asked to be relieved of the requirement for continuous display.  A summary judgment was denied for failure to notify Ward family members. 

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The Smithsonian argued it had no obligation to notify family members, but nevertheless published notice of the proceeding in a national newspaper and notified several family members with which it had had contact in recent years.  The District Court for the District of Columbia has now granted the relief requested by the museum.

Initially, the Court ruled that because the original agreement did not have a provision for what should happen if the museum wished to stop displaying the sculptures, the family had no reversionary interest and no right to intervene.   It also said that the museum had no obligation to notify family members of the proceeding.

On the substantive issues, the museum argued that its collection had expanded significantly in the last 100 years while its space had not grown, that it no longer accepts collections with permanent display requirements, and that continuous display would be inconsistent with its mission because the sculptures display outdated colonial stereotype views of the subjects.  It argued that the online display would allow it to apply historical context and display the items for international exhibition.

The Court said that the doctrine of cy pres allowed it to change the terms of a charitable gift when the conditions become “unlawful, impracticable, impossible to achieve, or wasteful” and the proposed modification is “as near as possible” to the donor’s original intention.

It found that cy pres was justified for multiple reasons and that the proposed modification would be as near as possible to the Wards’ original intent.  (United States on behalf of The Smithsonian Institution, Petitioner, D.C., DC, Civil Action No. 17-3005, 8/2/21.)

This case illustrates the long time delays in achieving resolution to issues involved in this type of cy pres case.  The outcome is not remarkable.  The holding that the descendants of the original donors have no standing to intervene or even to notice of the proceeding is not unusual, but is a good restatement of the law.

To learn how to avoid some of these issues, participate in our September webinar, “Stewardship Is More Than Communication.”  Many of these issues can be handled with good gift acceptance agreements, as will be discussed in the program.


This kind of decision is having a chilling effect on donations to museums. I've talked to many donors who say "I'm just putting the stuff up for auction" since I have no idea what court in the future will just decide that the museum can violate the agreement. I think we're seeing this across the country. It's also very circular. If your attorney writes an agreement that is very specific, contains penalties for violations, etc. the institution will simply tell you that they won't agree to accept your gift. So I would question whether or not there is any solution at all.

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