I College of Law

STATE

UNIVERSITY OF IOWA

IOWA CITY, IOWA

October 18, 1963

President Virgil M. Hauch r r id nt's Office

Old Ca itol uilding State University of Iowa I a City, Iowa

D r Pr ident Hanch r:

I n re : Letting the Pollock ur 1 go to New York.

Your fir•t queeti n was: Was the Gugg nhei gift of the Pollock ural b clute or conditional?

Th f Gift.

I attaching photocopies of two 1 tters fr iss Gugg nh 1 and on by Mr. Lo n. (These ver fr Mr. S ib rling's files.) Th first dat d Octob r 3 , 1948, refers to making a gift. Th letter recites that th Pollock ural w s lent to Yal and wa no longer on exhibition. Miu Guggenh i th n t t s "if you h ve big ogh ( ic) place for it you I will be d lighted to off r it to you."

that th be abl

The letter of ov b r 11 from Hi s Guggenh i recite a ain pictur 1 no long r on xhibit at Y and says "1 you will

to show it I will be delight to giv it to you.''

The third nclosur 1 a co y of th lett r from Mr. Longman dat d October 28, 1948, accepting th gift .

There y have been oth r corre~pond nc pas ing b tw n the University and Mi 1 Guggenh 1 which might indic te that there w s a condition upon the ift . A e rch has not rev aled any action of the financ c ittee or oth r corr s n nee in the 1948-49 acad ic year r lating to thi gift . I f there 1 such corr apondence it ight hav a bearing on wh th r the gift was conditional or not.

President Virgil M. Rancher October 17, 1963 Page Tvo.

There may be ambipitx about the teru of the gift.

On the face of the enclosed correspondence bee.een Mr. Longman and Mi .. Guggenheim it appears that Mi .. Gusaenheim •s concerned that the Pollock mural be shoWft somellbere. In the letten to Mr. L_onpan, the language of gift follows a statement that "if you will be able to show it" or "if you have a place for it." Althouah 1 would certainly argue that the language of the gift is unconditional, theae provisions can be seen to be ~biguoue enough to give color to an argument that the gift was made on condition that the mural be shown and that the University have a suitable place to show it. Legal support for such an argument could be found in Linahan v. Linehan, 131 Conn. 307, 39 Atl. 2d 894 (1944), in which the court atatea " ••• a gift expressed to be ab­solute may e cut down to a lesser estate by subsequent provisions couched in 'language clearly indicating intent, and equivalent to a positive provision.'"

Pacta surrounding the gift have been related to me by Professor Seiberling Who says that at the time of the gift the Pollock paintina was mailed and insured for only $100 or so, that Pollock -s not as wll known then as nov, and that Mils Guagenheim ... anxious to make sifts in order to make Pollock's work known. These facta might abed some light upon Mia• Guggenheim's intent. However, 1 believe the only answer 1 can make to your question about whether the gift 1a conditional is that it depends upon the inter retation of the language Which i• arguably ~biguous. My personal opinion i1 that the gift ... not con­ditional, but some queation could be raised. If there va1 a condition, 1 do not have the information which would enable me to answer the question of Whether it vas and is being met.

Revocation of Conditional Gifts.

Even though Miss Guggenheim might establish that the gift was conditional, the Vniversity might still be entitled to have an oppor­tunity to comply with the condition, and to 1bow that it has complied with the condition.

The general rules as to revocation of conditional gifts is sat out in I 54, Vol. 24 of American Jurhprudence:

"Conditional Gifta.--lt is well settled that if a valid gift inter vivo• ia made upon certain conditions, the donor may revoke the gift if the donee fails to comply with the conditions or refusea to perform them, and the

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President Virgil M. Rancher October 17, 1963 Page Three.

donor may recover the gift or the value thereof. The fact, however, that the donee fails to do What the donor hopes and expects of hta, by reason of the sift, does not .. rrant a revocation of the sift. While the donor may revoke his gift at any time before compliance by the opposite party with the conditions on which it is delivered, yet When the donee has artially complie vith such conditions , the donor cannot t hen withdraw his gift without giving the donee an opportunity to comply fully. It bas been held that a gift of lands for a special urpose may be revoked i f there is a noncompliance with the conditions in the gift, and that a gift may be revoked vbere there is a reserva-tion of the right to revoke •••• " [Emphasia Added]

Would there be any risk in sending the painting to New York?

The answer to t his question, of course, would be there is a risk and it might be argued that the painting has not been shown in c011lpliance with the condition. Appraisal of tbbrisk in dollars and cents is very difficult, A first question would be whether or not Miss Guggenheim is likely to file such a suit, Her recent correspondence shoving the pro­bability of her filing a suit would have to be weighed. If the painting is sent to Hew York and is being shown by the State University of Iowa any condition of the gi f t is being met, but the defense any suit in New York would cost the University. Aaainst these negative factors I am certain there are benefits to e obtained y lending the painting. I cannot say Whether these benefits out-weigh the risk. All I can say is that some risks woul d follow sending the mural to New York, risks Which are probably not present here because it would be lass convenient for Miss Guggenheim to bring suit in Iowa than it woul d be in New York and her attorneys would probabl y advise her that the chance of success against the University would be less i n Iowa than they would be in New York.

CD:klr Bnc.

Very truly yours,

~~~·. ~~=:tA Cl Davis A " ~nt Professor of Law