The Fred L. Emerson Foundation has scored a victory in the dispute over a valuable Thomas Cole painting after an appellate court overturned a Seward descendant’s appointment as an administrator of William H. Seward III’s estate and tossed out a lawsuit against the foundation and the Seward House Museum.
The state Appellate Division, Fourth Judicial Department in Rochester issued its ruling Friday, reversing acting Cayuga County Surrogate’s Court Judge Thomas Leone’s decision that was handed down in May 2013 appointing Ray Messenger, the great-great grandson of former Secretary of State William H. Seward, as an administrator of William H. Seward III’s estate.
Leone’s decision naming Messenger an administrator of the Seward estate would allow Messenger to challenge the potential sale of Cole’s painting, “Portage Falls on the Genesee,” which used to be displayed in the Seward House Museum.
“Although the Surrogate properly determined that (Messenger) was eligible for appointment as administrator… we nevertheless conclude that he erred in granting letters of administrator to petitioner,” the court states in its ruling. “It is undisputed that there are no assets of the state that have not been administered.
“As the Court of Appeals has written, ‘[t]here may be cases where letters of administration are necessary to be granted for other purposes than the recovery and distribution of assets,’ including a ‘claim in respect to them which can be enforced.’ Nevertheless, we conclude that any claim with respect to the painting is to be ‘enforced by the [attorney general], pursuant to his duty to effectuate the donor’s wishes’ and we conclude that letters of administration c.t.a. are not necessary.”
Anthony Franceschelli, president of the Emerson Foundation, praised the appellate court’s decision in a statement released Friday.
“We believe the appellate court came to the appropriate conclusion in overturning Mr. Messenger’s appointment as administrator of the Seward estate and dismissing his pending lawsuit against the Emerson Foundation and Seward House Museum,” Franceschelli said.
“The Emerson Foundation board and Seward House Museum board remain unified in our position that the decisions related to the Thomas Cole painting are for the best, long-term benefit of the Seward House Museum. The decision to remove the painting was made in light of the safety and security risks inherent with maintaining this masterwork given the age and construction of the building.”
When Seward III, William H. Seward’s grandson, died in the early 1950s, he left the Seward House to the Emerson Foundation. In 2008, due to new state regulations, the foundation had to turn over the property and most of its contents to the Seward House Museum. But the group retained ownership of the Cole painting.
The Cole painting was removed from the Seward House Museum in February 2013. In a letter announcing the decision, the foundation and museum board said it was “no longer responsible or prudent” to keep the painting at the museum.
When the foundation and museum board announced the removal of the painting, the foundation also revealed its intent to sell the painting, which was appraised at $18 million. At the time, the foundation said the painting could be sold through either a public auction or private sale, with the proceeds being split between the foundation and the museum.
Messenger and other Seward descendants objected to the removal and potential sale of the painting. Messenger explored his legal options and opted to seek an appointment as administrator of the Seward estate, which Leone granted last year.
The Emerson Foundation appealed the decision and on Friday, the appellate court reversed the ruling.
Robert Bergan, Messenger’s attorney, said they will be discussing next steps in the coming days.
“We were disappointed that the appellate division reversed the decision of Judge Leone, which we believe to be the correct decision,” Bergan said by phone Friday. “However, we are encouraged by that part of the decision from the appellate division that provides that we may file a new petition in this case if circumstances change and it becomes necessary for William Seward III’s estate to participate.”
Bergan said the appellate division’s ruling “has placed the burden of protecting the painting” on the state Attorney General Eric Schneiderman’s office. The attorney general’s office submitted a filing in September urging the Cayuga County Surrogate’s Court to issue a decree ordering the foundation to transfer the painting over to the museum.
“The (appellate court) stated that thus far in this proceeding, the attorney general has properly fulled his duty to protect Mr. Seward’s wishes,” Bergan said. “We expect the attorney general to continue to act in this manner and we will definitely remain ready and prepared to reenter the proceeding if circumstances change.”
While the decision removes Messenger as an administrator of the Seward estate, the foundation still must seek approval from the Cayuga County Surrogate’s Court prior to selling the painting.
Franceschelli said the foundation is in communication with the attorney general’s office on this issue.
“Notwithstanding the decision by the appellate court, we remain in dialogue with the charities bureau of the New York State Attorney General’s office in an effort to identify the best workable resolution of this matter,” he said.
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