Shortly before he died in 1951, Albert Barnes gave Lincoln the authority to nominate - not appoint, but nominate - four of the five trustees of the foundation. This authority was phased in as each of the trustees appointed by Barnes himself died or resigned. The last Barnes-appointed trustee, Violette de Mazia, died in 1989.
The right to nominate trustees is not the same thing as the power to control the foundation. It is the trustees who vote to appoint their successors, and they are free to accept or reject Lincoln's nominees. If Albert Barnes had wanted to give Lincoln control over the foundation, he could have easily done so. Trust law provides many options. He could, for example, have given Lincoln the power to remove the trustees it nominated if their actions were not to Lincoln's liking, in effect making them toe the line or face dismissal.
He could have been even more direct and given Lincoln the authority to tell the trustees what to do or the power to approve their decisions. But he did not. He gave Lincoln only the right to nominate four trustees and nothing more. Control of the foundation was given to the trustees to exercise as they saw fit, not to Lincoln. That was Albert Barnes' plan.
Lincoln as much as admitted this in its filing with the Orphans' Court last fall in response to the foundation's petition. Lincoln then stated it could not comment on the foundation's claim of financial hardship because it did not have access to the foundation's financial records. If Lincoln had legal control of the foundation, as it implies, it would have had such access. It did not have access because it does not have - and Albert Barnes did not give it - legal control of the foundation.
Lincoln finds itself in the difficult position of arguing effectively that it has control that it never exercised. In the 36 years since it nominated its first trustee, Lincoln has never reviewed foundation financial records, never tried to take advantage of the foundation's resources for the education of its students, and never insisted that the trustees seek its approval or permission for its actions.
Lincoln also had no role in the battle the foundation waged 11 years ago to send its collection on tour and renovate its building, nor did Lincoln attempt to restrain the foundation in its financially ruinous litigation with its neighbors and the township over a parking lot.
If Lincoln had "control" of the Barnes Foundation, then it certainly did not take its responsibilities seriously. Had it done so, perhaps the foundation would not be in the financial hole it has dug for itself.
In a perfect world, the Barnes Foundation would remain on North Latches Lane and would live in harmony with its neighbors. Its coffers would overflow with generous donations. But the relevant legal question is not what Albert Barnes would have wanted in a perfect world. It is what he would have wanted his successors to do if his foundation faced financial collapse. For better or worse, and despite what Lincoln seems to claim, Barnes gave that decision to the trustees, not to Lincoln.
The trustees of the Barnes Foundation and the foundations supporting them are trying to assure the future of the Barnes. The claim that white-dominated groups are trying to wrest control of the Barnes Foundation from Lincoln - a control Albert Barnes never gave it - is a red herring that threatens the future of that very foundation, wherever that future may be.
Bruce H. Mann teaches trusts and estates at the University of Pennsylvania Law School.
