At the Weekly Standard, art critic Lance Esplund has an essay decrying the upcoming move of the Barnes Museum from Lower Merion, Pa., to Philadelphia:

Now after years of litigation, Albert Barnes’s intentions have been subverted and his will broken. And the Barnes Foundation is scheduled to be moved. Galleries have already been closed. Ground broken. Pictures crated. The thousands of artworks are all being uprooted from their home in Merion, Pennsylvania, a leafy suburb 20 minutes from downtown Philadelphia, and transplanted to the mall on the Benjamin Franklin Parkway next to the Philadelphia Museum of Art.

Advocates claim the relocation is being done in the name of progress, conservation, civic responsibility, and convenience. It all sounds benign enough if you fail to consider that the Barnes Foundation, unlike almost every other museum in the world, is a rooted organism. Yes, the artworks will arrive in Philadelphia, but the museum—the experience of its art—will be irreversibly maimed. And with its move there will be considerable collateral damage extending to the broader areas of museum stewardship, museum donors, and the public trust. Besides violating the legal will and stated intentions of the foundation’s sole benefactor—who stipulated that no work in his collection ever be loaned, deaccessioned, or moved from the building he had designed for it; that no object ever stray, not even an inch, from the precise spot in which he had personally placed it—the move is an unforgivable act that disregards the true purpose of museums.

The essay is primarily a celebration of the museum in its current form and the aesthetic choices by its creator.

Problem is, Esplund’s having the wrong debate:

The new Barnes is scheduled to open in downtown Philadelphia by 2012. Rebranded as the Barnes Foundation Art Education Center, it will not follow the museum’s original footprint. It will be bigger—able to accommodate a projected four times the number of annual visitors, roughly 250,000 people. While the new Barnes’s galleries will supposedly replicate the scale, proportion, and configuration of the existing galleries, it will be through a Frankenstein’s monster-like revivification. And though almost all of the artworks are to be reinstalled as they were in Merion, there are exceptions.

Maybe so. But does that make the decision "unforgivable" because it is "violating the legal will" and will cause "collateral damage extending to the broader areas of museum stewardship, museum donors, and the public trust?" 

Pennsylvania law already strongly protects the intent of donors, even those long since deceased; consider the failed effort to expand Fox Chase Cancer Center into Burholme Park. Esplund’s argument seems to be that, since Barnes himself "understood and advocated" that "[a]rtworks exist outside—above—their specific movement, mythology, time, and place," that "[e]ach piece is a gateway into an exploration of the language of art; the subject is secondary, even tertiary, to its function as a vehicle for life," and that Barnes settled upon a design that expresses these conception in a compelling way and sought by law to preserve that design, the Foundation should be bound forevermore by that design, come hell or high water.

Legal scholars call that the problem of "dead-hand control." (See, e.g., The Low Road to Cy Pres Reform: Principled Practice to Remove Dead Hand Control of Charitable Assets.) As much as we want to protect a person’s right to dispose of their assets upon their death as they see fit, we can’t bind the management of those assets to every last word of a testator’s will, and have to make allowances when circumstances require we do so to preserve the testator’s overall intent.

Here, the trustees tried to respect the dead-hand. The Judge tried to respect the dead-hand. Problem is, as described in Judge Ott’s order permitting the move, "The Foundation was on the brink of financial collapse." Moreover, "the provision in Dr. Barnes’ indenture mandating that the gallery be maintained in Merion was not sacrosanct, and could yield under the ‘doctrine of deviation,’ provided we were convinced the move to Philadelphia represented the least drastic modification of the indenture that would accomplish the donor’s desired ends." 

The 2004 Order found exactly that: the move to Philadelphia represented the least drastic modification of the indenture that would accomplish the donor’s desired ends. That’s called cy pres: the attempt by courts to follow a testator’s intent as closely as possible.

Esplund briefly references the problem — i.e., "the brink of financial collapse" — that made the decision necessary in the first place:

The art dealer Richard L. Feigen, who was dismissed from the Barnes Foundation’s art advisory committee by Glanton in 1991 because he refused to support the deaccessioning plans, eloquently summarized the deceptiveness of the Barnes move in the Art Newspaper:

One could wonder whether the only reason not to homogenize the Frick Collection into the Metropolitan Museum of Art, the Gardner Museum into the Boston Museum of Fine Arts, the Phillips Collection into the National Gallery of Art, is that they have endowments large enough to keep predators at bay. .  .  . The arguments for this foolish project are specious. The present Barnes building could easily be made more accessible. Hours could be extended. Shuttle-buses could run continuously from the Philadelphia Museum of Art, a short 4.6 miles away. .  .  . Insufficient effort[s have] been made to tap private resources for the old Barnes .  .  . to sell the redundant real estate of Barnes’s valuable farm, its 19th-century American pottery collection or unrestricted paintings in the offices, which have been appraised at more than $30m. Despite its claims that the Barnes had run through its money and had to be “saved,” the establishment did not really want to “save” it, only steal it.

But all of that was considered by Judge Ott and rejected as simply not feasible (see pp. 29-32 of the Order). Instead of waxing poetic about the museum’s current configuration — which surely is worthy of praise — how about Esplund offer some solutions to the problem that has made that configuration impossible to sustain?

As easy as it is to claim that moving the museum is "violating the legal will," the reality is far more complicated. There’s no doubt Barnes wanted the museum to be public. As he wrote his lawyer back when creating the trust: "In short, I am building for the future, I want to guarantee my privacy, and I want to prepare the way for the gallery to be a public one after my death." (Order, p. 22.)

Esplund does nothing with that fact, either. He simply complains that the new, larger museum — with essentially all of the same artwork in a comparable, but more spread out, configuration — isn’t within his views of Barnes’ tastes.

But would Barnes have chosen that particular configuration over financial ruin? Judge Ott didn’t think so. Most judges would agree. Aesthetics are nice, but someone’s got to pay for them. If they can’t, then the dead-hand has to give way.