Editor's Note: The following article about
a controversy involving an art collection that had been loaned
to the Dallas Museum of Art and then removed under rather mysterious
circumstances was written by Antony
F. Anderson, a British electrical engineer who is a son-in-law
of the late Anthony Denney whose former art
collection is the subject of the article. Despite such an
apparent conflict of interest, the issues raised in the article
are important and merit attention. Further information can be
found at http://museum-security.org/denney/index.htm
As a protection against similar loan misappropriations,
Anderson suggests the creation of a public register of loan collections,
accessible via the Internet. The system could be part of a wider
distributed cataloguing system for works of art that would serve
the needs of artists, collectors, museums, and researchers.
Carter B. Horsley, Editor, The City Review
By Antony F. Anderson
study by leading international art law experts under the auspices
of the International Bar Association based in London and published
in June, 1997, by Kluwer Law suggests that art loan controversies
are far more common than might be supposed. It notes that loans
rely too heavily on good will and trust instead of properly drawn
up loan agreements that anticipate possible future problems.
A major example of an art loan failure, mentioned in the IBA study, involves the Denney Loan Collection, which was removed in
a rather irregular manner from the Dallas Museum of Art in 1990
after the death of its 76-year-old owner Anthony Denney. The collection,
today worth several million dollars, contains works of art by
comprising modern works of art by Karel Appel, Franco Assetto,
Alberto Burri, Horia Damien, Jean Dubuffet, Lucio Fontana, Sam
Francis, Horst-Egon Kalinowsky, Georges Mathieu, Louise Nevelson,
Jean-Paul Riopelle, Antonio Saura, Antoni Tapies, Pavel Tschelitchew,
Victor Vasarely, and Emilio Vedova.
The Denney case illustrates that reliance on
good faith between lender and borrower is insufficient protection
against the possible risk of a determined conspiracy by third
Forged letters were used to move the Denney
Loan Collection from Dallas to Toulouse, France, where the collection
was then hidden and later moved to the Citys old Abattoirs,
and where by a much-trumpeted act of donation they were subsequently
made to appear as an apparently bona-fide gift to City of Toulouse.
Art Loans are no exception to Murphys
law, which says says that if anything can go wrong it will, here
are three of many possible examples:
in which a major donor of Chinese paintings to the Metropolitan
Museum of Art in New York threatened in 1997 to remove them because,
he claims, the museum violated its contract with him. (See The City Review articles that also raise serious
questions about the attributions of many Chinese paintings at
the museum from the C.C. Wang collection.)
"The Robin Hood of export porcelain"
According to the Art Newspaper of September,
1997, John Quentin Feller, one time professor of history of Scranton
University and eminent Chinese export porcelain scholar, stole
in order to lend and give generously. The report maintained that
he gained privileged access to eight museums and private collections
from which he stole over 100 items over a course of two decades.
He frequently loaned or donated his acquisitions to other museums.
For example, he stole eighteen objects from the basement of the
Wadsworth Atheneum in Hartford and gave them to the Peabody Museum
in Salem, Massachussetts, which responded by making him a trustee.
He was finally caught in 1991 stealing a piece of George Washington's
dinner service from the Wintherthur Museum in Wilmington, Del.
He was jailed for eighteen months, fined $30,000 and expelled
from the University. One wonders how careful the Museums receiving
these unsolicited loans and donations were to check their provenance.
Children sue stepmother over Morisot painting. According to a June 12, 1997, article in the San
Francisco Examiner, the children of the late Prentis Cobb Hale,
millionaire department store owner, are suing their stepmother,
Denise Minnelli Hale, and seeking punitive damages for the return
of an $800,000 oil painting by Berthe Morisot titled "En
Bateau sur le Lac de Boulogne," currently on loan to the
De Young Museum in San Francisco. The article said they claimed,
in a lawsuit filed in March 1997, that in 1958 their father used
$15,000 held in trust for them to buy the painting and that it
therefore belonged to them. Denise Hale maintained that her husband
- the heir to Carter Hawley Hale Stores, Inc. - had used his own
money to purchase the painting, and that he had given it to her
while he was alive. Hale said she planned to leave it to The City
of San Francisco in her will "so that everyone can enjoy
it". This example illustrates how easy it is for museums
to be drawn into ownership disputes unless they exercise due diligence
in checking that prospective lenders and donors have full title
to what they claim to own.
A December 24, 1997 article by Judith H. Dobrzynksi
in The New York Times about the Dr. Rudolf Leopold collection
of the art of Egon Schiele on view from October 10, 1997 through
January 4, 1998 at the Museum of Modern Art in New York - and
formerly exhibited at institutions in London, Zurich, Tokyo and
in Tübingen, Hamburg and Düsseldorf, Germany - contained
some works of questionable provenance and condition and raised
questions about the responsibilities of museums to oversee their
loans. Dobrzynski said the presentation of the Leopold collection
"raises serious issues for museums that show individuals'
collections: What should they know and care about how the works
came together?..." A follow-up article January 1, 1998
by Dobrzynksi in The Times disclosed that the Moden Museum has
been asked not to return two major works in the Leopold exhibition
until issues of provenance have settled. The Leopold collection
was acquired by Austria in 1994 and put in a private foundation
that is building a museum for it in Vienna. The exhibition
is scheduled to be shown next in Barcelona, Spain. (See The City
Review article on the Schiele Affair.)
Professor Norman Palmer, Rowe and Mawe Professor
of Commercial Law, Faculty of Laws, University College, London,
and a team of international experts have recently completed an
exhaustive four-year study of Art Loans for the International
Bar Association that has been published as "Art
Loans" by Kluwer Law.
Prof. Palmer regards the modern art loan as
an essential medium of cultural exchange and argues that without
such mechanism no major traveling exhibition could be mounted.
He indicates that there are many pitfalls lurking within every
art loan ready to catch the unwary and says that loan agreements
place far too much reliance on trust and goodwill and too little
on putting in place a legal framework to cover unlikely future
Great attention, he observes, is usually paid
to everyday issues such as valuation, insurance, security measures,
humidity control, orderly paperwork and practical redress in the
case of misconduct, but loan agreements are made routinely without
specific legal advice being taken. Furthermore, he continues,
potential issues for dispute such as title, duty to exhibit, authenticity,
attribution, and the choice of law venue for settling disputes
tend to be treated as of little importance.
We can see immediately how vulnerable the art
loan system is to attack once the relationship between the lender
and borrower becomes weakened, or broken by age, infirmity, distance
or death. Loan agreements must realistically take these possibilities
The basic facts in the Denney case are the
With hindsight, we can see that these surrounding
circumstances made the collection vulnerable to attack. However,
if a conspiracy by third parties had been anticipated as a remote
possibility, a number of checks and procedures could have been
put in place that would have made the success of any conspiracy
unlikely. But I jump ahead
Anthony Denney, born in 1913 in Norfolk, England
studied Fine Art at the Royal College of Art in London. During
World War II, he was in the Royal Engineers, finally ending up
in India with the rank of Captain and engaged in Military Intelligence.
He had the good fortune to visit China and Tibet in the process.
Photographs show him riding a yak, an achievement of which he
was proud. While in India his earlier photographic work was brought
to the attention of Audrey Withers, then the editor of Vogue,
leading him to post-war prominence as Decorations Editor and to
other work for the Condé Nast organization and to a parallel
career advising the famous and wealthy on interior design for
their houses and yachts. Always a perceptive collector he became
fascinated by new trends in art during the 1950s and 1960s.
His keen eye spotted promising artists before they became known,
such as Appel, Burri, Dubuffet, Fontana, Imai, Mathieu and the
Japanese Gutai group. He bought their works at very reasonable
prices to form the nucleus of what later became his loan collection.
His marriage to Diana Ross, a writer of children's
books by whom he had three children, had ended in divorce in 1950.
Denney kept in touch with his children and for several years Sarah,
one of his twin daughters, kept house for him. In 1970, he remarried
and retired to Spain where he bought and restored the ruined 12th
Century castle of Salvatierra de los Barros, not far from the
town of Zafra in the province of Extramadura. This splendid castle
built by Crusaders on the Syrian pattern had been a ruin since
the 14th Century. He solved the problem of housing his collection
by lending the most important part - conservatively valued by
Sotheby's in 1992 , when the bottom had fallen out of the art
market as worth $2 million, but now worth upwards of $5 million
- to the Dallas Museum of Art. (Sotheby's valued Alberto
Burri's "Sacco IV" at £100,000, whereas the city
of Toulouse had been negotiating to buy it at £200,000
the previous year and a figure of £300,000 to £400,000
is a more likely value in the 1998 art market.) The loan
arrangement seems to have been for an indeterminate period and
of a rather informal nature, but it seems to have worked well
for twenty years. Denney appeared to have kept the knowledge
of the whereabouts of the collection largely to himself.
Anthony Denney died of a sudden heart attack
on April 30, 1990, in his castle and his funeral took place the
same evening, with his children unable to get there in time and
only the villagers present.
The long obituary in The London Times of May
15, 1990, described Denney as a photographer, art connoisseur
and collector and mentioned that "part of his modern art
collection was at one time on loan to the Tate Gallery."
His death was not picked up by the rest of the media and
did not become known in Dallas.
In mid May, 1990, abut two weeks after Denney's
death, the Dallas Museum of Art received a latter, provided with
other correspondence subseqently in 1991 by the museum to the
Denney heirs and submitted as evidence in their inheritance claims
in Spanish courts, that was signed "Anthony Denney"
and dated April 27, 1990, three days before his death.
In the letter, Denney wrote:
"Now, however, it is my wish to reunite
my collection in Europe. To this end I am arranging a long
term loan tothe Musée d'Art Moderne de Toulouse,
France, under the directorship of Monsieur Alain Mousseigne.
now on all arrangements will be conducted by Monsieur Mousseigne
himself, with my authorization, and he will be writing to you
directly from Toulouse."
The implications of the letter are clear. From
now on, M. Alain Mousseigne, Conservateur of the Toulouse Museum,
is to be Mr. Denneys agent and he will pay transport costs
and insurance. The Dallas museum duly acknowledged Denneys
letter saying that they would wait to hear from M. Mousseigne.
Over the next few months letters passed between
the museum and Mousseigne arranging transport. Then, in July,
1990, the museum wrote to Anthony Denney, whom they supposed to
be still alive, suggesting that he might care to update the insurance
values. They received a reply, dated August 22, 1990, with the
updated values, signed, "Anthony Denney". The writer
excused the inevitable delay in replying by claiming to have just
come back from holiday!
Still believing Mr. Denney alive, the museum
completed transport arrangements with M. Mousseigne and the collection
was airfreighted to France in November, 1990, under the high security
appropriate for such a valuable cargo. (Had the museum got wind of Denneys death it
would have been a different story. They would have required sufficient
proof of ownership before releasing the pictures, such as a grant
of probate from a U.S. court, accompanied by duly authenticated
supporting documents from Spain. The key document would have to
be a notarised declaration of inheritance, with the paintings
listed on the inventory, that showed to whom the pictures now
The works entered France as the property of
the supposedly living Anthony Denney. On the shipping order was
On arrival in Toulouse the pictures were hidden
for the time being.
In the summer of 1990, long before the pictures
had arrived in Toulouse and about a month before the second letter
from "Mr. Denney," negotiations were already in full
swing between Denneys widow and M. Mousseigne. She claimed
that she was now sole owner of the pictures, by virtue of being
residual legatee of her late husbands estate, and she was
now proposing to donate the collection to the City, as if a gift
from her, in fulfillment of his last wishes, or so she said.
The widows claim was based on her assertion
that English Domestic Law applied and that therefore Denneys
children by his first marriage did not have rights to a legitimate
portion of the estate under Spanish Law. (One-third on death and
a second third in which the widow had a life time interest.) The
grounds for her assertion were not particularly well founded,
since the issue had never come before the Spanish Supreme Court
and there were no existing judgments that would indicate how the
Court might rule if asked to decide the Denney case. Therefore
if the City should take the widows claim at its face value,
there could be no guarantee that ownership would not be challenged
in the courts, nor could there be any certainty in the outcome.
A further element of risk arose
because, although the widow had managed to convince the Spanish
authorities that the entire estate devolved to her, she had not
declared the pictures on the inventory of her Declaration of Inheritance.
The castle - described as a ruin, surrounded by a few acres of
land and a few fig trees and valued at $120,000 - was the sole
item listed. Its valuation formed the basis on which the inheritance
tax was paid. The pictures therefore remained undisclosed assets
of the Denney estate. By not claiming the pictures as part of
her inheritance she may have minimised inheritance tax, but she
also denied herself the documented proof of change of ownership.
Furthermore, if the donation later became
known to the Spanish authorities, they might demand payment of
outstanding inheritance tax and exact a penalty for hiding assets.
It seems, however, that the city authorities
in Toulouse were more than happy with the prospective donation,
notwithstanding the risks of inheriting a substantial tax liability.
A memorandum from M. Alain Mousseigne, Conservateur of the
Museum of Modern Art in Toulouse to an official in the mayor's
office, dated October 8, 1990, asks how the existence of the collection
could be kept hidden from the Spanish authorities, who did not
know of its existence. The city obliged with an Act of Donation,
finally signed in September, 1993, that claimed to pass ownership
from the widow to Toulouse, and to empower the city to defend
its title. It also contained a clause committing the city
to pay any outstanding costs of acquisition of the collection.
The Act categorically states that "English
Law" applies and that therefore "the universal disposition
to the profit of Madame Denney has been able to produce its full
and entire effect," yet it also admits that the claim has
been challenged in the Spanish courts.
Although the donor claims in the Act that there
exists no obstacle as far as she is concerned, either legal or
contractual, to the free disposition of the goods donated, she
produces no evidence to show that they are actually hers.
This Act is therefore a far less certain instrument
of conveyance than it appears. The quality of the title
passed to the City of Toulouse is neither better nor worse than
that possessed by the donor and the quality of her title is still
a matter for the Spanish courts to decide.
Denneys three children by his first marriage
were not aware about what was going on in Salvatierra and Toulouse
during the summer and autumn of 1990. But at the end of September,
1990, they each received a copy of Denneys Spanish will
and an explanatory letter from his widow. The letters implied
that their fathers estate comprised merely the castle and
the surrounding land - no mention of the pictures - and that the
will disinherited them. However, when they read the will they
found it said something rather different: the disposition in favor
of the widow as residual legatee was without prejudice to the
legitimate rights that the children might have under their fathers
national law. Which begged the question: what might these protected
rights be in the case of an Englishman making a Spanish will who
was domiciled in Spain? They initiated litigation to establish
the point, which now has reached the Spanish Supreme Court. (The initial inheritance claim was
lodged with the Court of Jerez de los Caballeros in Extramadura,
Spain, May 10, 1992 in what is known as
"non-contentious proceedings." The judge in the case
allowed it to go to "contentious proceedings" July 20,
1993, on the grounds that the widow was contesting the claim of
the Denney children to be recognized as heirs. In November, 1993,
the case, known as a full demanda was presented to the Court of
First Instance and a judgment was delivered January 30, 1995,
in favor of the three Denney children. The ruling was appealed
to the Provincial Appeal court and a July 11, 1995, ruling went
against the children on a matter of procedure rather than substance.
The matter has been before the Supreme Court since November 1995)
Before proceeding with litigation,
the children had been advised by their lawyers to establish the
extent of Denney's estate. Therefore they had to find out what
had happened to his collection.
Anthony Denney had acquired a reputation over
the years for squirreling away his possessions in the attics of
obliging friends against a rainy day. Every now and again he would
visit his friends, reclaim a few items and disappear again. This
became a bit of a family joke and sometimes a family problem.
He was not always terribly popular with some of his friends with
attics, because - with the passage of time - they needed the space
themselves: then it sometimes fell to his children to tactfully
sort out some new arrangements. Therefore, when they heard that
he had passed on without leaving the slightest trace of an art
collection behind him, this struck them as rather implausible.
Yes, the castle with its massive water cisterns in the towers
and its beautifully polished marble floors had cost money to restore,
but the sale of a Fontana or a Sam Francis would probably have
paid for it all twice over. So what had happened to the rest of
the pictures? The records were locked up in the Castle and could
not be examined, but Denney had lent to public institutions in
the past and there was always the hope that some might have kept
records of his loans to them.
After a great deal of research, the breakthrough
came from the Tate Gallery Archives in London in the early summer
of 1991. Six pictures on loan to the Tate and belonging to Anthony
Denney had been sent to an undisclosed destination in Texas in
1970. Without much expectation, letters were sent off to a number
of Texas museums soliciting help. Various letters came back regretting
that they had no pictures, but wishing good luck in the search.
Then one day there was a transatlantic telephone call from the
Dallas Museum: the good news was that there were 23 pictures;
the bad news was that the pictures were in Toulouse. Up till that
day the Dallas Museum had believed that Mr. Denney was alive.
From the extensive information the Dallas Museum
provided, it became clear that Anthony Denneys total collection
of works of art numbered over 300: of which 130 were described
in detail as being his loan collection, the remainder not being
named and being retained in his personal collection. Of the 130
loan items, 30 were lent to Dallas in 1970, of which 23 were still
in Dallas in 1990, six having been sold in the intervening period
and one, "Sacco IV," having been lent on to the 20th
Century Italian Art Exhibition in London in 1989. Of the remaining
100 items in the loan collection, 15 pictures on loan to various
UK institutions - including Mathieus "Battle of Hastings"
on loan to the French Institute in London - were also moved to
Toulouse in 1990-91 in a quite unauthorized manner, bringing the
number moved there after Denneys death to 38. It seems that
the eventual size of the "Denney Donation" was to be
69 pictures, some subject to usufruct, to which was to be added
Burris "Sacco IV," to be purchased in secret from
the Widow, bringing the total to 70
In the autumn of 1991, the Museum of Toulouse
was put on notice concerning the potential rights that the Denney
heirs might have under Spanish Law. Nevertheless, the City of
Toulouse proceeded with its plans for accepting a donation from
the widow. The heirs tried to take conservatory action in the
Toulouse courts to prevent donation or sale. The full extent of
the basis of their claim as heirs, as presented in the Spanish
Courts, was tabled in the French Court: notwithstanding, the heirs
were unsuccessful in blocking the Donation, which went ahead in
September, 1993 in the full and public knowledge that ownership
was the subject of litigation in Spain and that the donor did
not possess a clear title.
The City claims the collection to be a gift
from heaven and one that it could not have refused.
The reality, in my view, is different.
The facts are: the collection was extracted
from Dallas by forged letters; it remains undeclared to the Spanish
Tax authorities; it is the subject of litigation in Spain; and,
finally, it appears not to be a gift at all, but a barter arrangement
between the City and the widow. The agreement was for the City
to purchase Alberto Burri's "Sacco IV". The city had
to get the approval of the Musées de France to purchase
the painting from an "unknown collector" for 2,000,000
French Francs in 1991. This is documented. Finally after repeated
questioning by the opposition in the Town Council, the Mayor admitted
that the unknown collector was Mme. Denney. The purchase of Sacco
IV has never actually gone ahead because the Mayor Has come under
pressure from the opposition in the Municipal Council to explain
how, if it is a donation, the City is proposing to buy "Sacco
IV" from the widow and why it is paying her legal expenses
in Spain. The argument is on whether or not there has been an improper
use of public funds. The donation is clearly not the simple gift
without strings attached, as it has been presented to the Toulousain
Toulouse Mayor Dominique Baudis says that the
ongoing litigation in Spain between the heirs and the widow is
a private matter in which neither the state, nor the region, nor
the city is in any way involved. Technically this is true. Yet
at the same time he justifies the use of public funds to pay the
widows legal expenses in Spain because he considers that
she is defending the interests of the City of Toulouse.
Denney's widow claims that because Mayor Baudis
is not involved in the Spanish Litigation he is placed at an unfair
disadvantage in defending his title to the pictures: in her view
he should have been able to make his views known at the Spanish
proceedings and because he was unable to do so the case should
be thrown out. The judge of the Court of First Instance at Jerez
de los Caballeros rejected this argument January 30, 1995, on
the basis that the defense had failed to demonstrate that the
collection had ever left the Denney estate. The judge in the Provincial
Appeal Court in Badajoz, Spain, decided, July 11, 1995, to allow
the argument and granted the appeal: throwing the case out without
considering the heart of the matter.
An appeal to the Tribunal Supreme, the highest
court in Spain, from this ruling was lodged November 8, 1995,
and admitted June 20, 1996. All stages have been completed and
a final verdict is awaited. However the judgment is unlikely to
be until late 1999.
The Denney case demonstrates how vulnerable
loans are to attack by third parties and the need to give loans
the same protection afforded to a museums own collection.
If the poaching of loan collections became acceptable practice,
which collector would then feel they could safely entrust their
collection to a museum? Might not the whole Art Loan system then
run the risk of collapse?
Openness is the best protection of all.
If the existence of Denney's collection had
been widely known, nobody would have tried to hijack it because
the risks of discovery would have been too high.
In "Lessons from the Denney Collection"
(see article at http://museum-security.org/denney/index.htm),
I suggest the use of the Internet for the worldwide sharing of
information about Art Loans and, for want of a better name, have
called the idea "Denney Net". The system would record
and track art loans from the moment that the object passed into
the public domain. Everyone would be able to follow a picture
if it became part of a traveling exhibition, for example. I believe
it would help raise the level of security for art loans to an
acceptable level. It would be complimentary to the Art Loss Register
a permanent computerized database of stolen and missing works
of art, antiques and valuables, operating on an international
basis to assist law enforcement agencies in the battle against
The objectives of the Art Loss Register are
A worldwide register of art
loans would have complementary objectives to the Art Loss Register
and the distributed database structure, as far as I can judge,
would be very similar.
Collectors: you should draw
up loan agreements that take into account
the remote possibility that someone may try to "hijack,"
or abscond with your Sam Francis, or Fontana, or whoever. But
even the best loan agreements cannot cope with every situation.
For example, what about the time when family and friends are preoccupied
with funeral arrangements and giving you a good send off at the
crematorium? Who will be thinking about the safety of your collection
as your friends are reminded of your brief span of life on earth?
This is just the right time for a good impersonation and the perfect
moment for a hijack! So to preserve your heritage for your rightful
heirs, not only draw up proper loan agreements and cover all the
loaned items in your will, but also make sure to send each loan
museum a copy of your obituary!