Allegory of autumn by Jacob de Wit (Gutmann/Province of Drenthe)
Binding opinion on the dispute regarding restitution of the grisaille Allegory of autumn by Jacob de Wit from the property of F.B.E. Gutmann, currently owned by the Province of Drenthe
Please note this is an unauthorized translation of the original Dutch text of the binding opinion“ Bindend advies inzake het geschil over teruggave van de grisaille Allegorie op de herfst van Jacob de Wit uit het bezit van F.B.E. Gutmann, thans in bezit van de Provincie Drenthe (RC 3.129)”
in the dispute between:
S.G., N.G. and L.V.C.-G.
of Beverly Hills (US), Valley Village (US) and Florence (Italy) respectively,
represented by S.G.
(hereafter also referred to as: the applicants),
The Province of Drenthe,
represented by the Drents Museum in Assen
(hereafter also referred to as: the Museum),
issued by the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War in The Hague (the Restitutions Committee), hereafter referred to as: the Committee.
1. The dispute
Friedrich Bernhard Eugen Gutmann (1886-1944) (hereafter also referred to as: Fritz Gutmann) and his wife L(o)uise Erika von Landau (1892-1944) owned a grisaille entitled Allegory of autumn. This work of art, currently owned by the Province of Drenthe, was created by the artist Jacob de Wit in c. 1751 as an overdoor for above the entrance to the drawing room of the Huize Bosbeek country estate in Heemstede. At a certain point in time, the grisaille was removed from its place above the door in the country house – the question when this occurred exactly is part of the Committee’s investigation – and was purchased by the Province of Drenthe in 1964. The item is currently part of the Drents Museum collection under inventory number P1964-4. The applicants are the heirs to Fritz Gutmann’s estate and claim restitution of the grisaille on account of what they adduce was involuntarily loss of possession due to circumstances directly related to the Nazi regime. The Museum informed the applicants that “the painting was […] not illegally obtained from your family”.
2. The procedure
The parties have submitted a joint request to the State Secretary for Education, Culture and Science (hereafter also referred to as: the State Secretary) to have their dispute settled by the Committee. The State Secretary submitted a written request to the Committee on 16 September 2011, asking the Committee to advise the parties on the dispute in accordance with the procedure laid down in Article 2, paragraph 2 of the Decree establishing the Restitutions Committee of 16 November 2001 (hereafter referred to as: the Decree). In letters of the same date, the State Secretary informed the parties of his request for advice to the Committee, in which he underlined that his intervention was motivated by pragmatic considerations, and that at no time would the State become party to the dispute.
In letters dated 18 October 2011 and 21 November 2011 respectively, the Museum and the applicants declared that they deferred to the regulations established by the Committee concerning the binding opinion procedure and that they would consider the Committee’s opinion to be binding. The Committee has verified the identities of the parties and has received a power of attorney from the Museum attesting to its authority to represent the Province of Drenthe in this procedure. The applicants have submitted a notarial certificate of inheritance showing that they are the heirs to Fritz Gutmann’s estate. The Committee has also received a power of attorney from S.G. showing that he is representing the applicants in this procedure.
The Committee has taken cognisance of all documents submitted by the parties and has conducted further research of its own. The parties have been advised of the results of this research in letters dated 22 March 2012. Both parties replied to this in a letter dated 29 April 2012. This binding opinion includes the relevant information from the research and the parties’ replies.
3. The facts
The following facts can be assumed in this procedure.
3.1. Fritz Gutmann was a German-born banker and art collector of Jewish descent who moved to the Netherlands in 1918. He was one of seven children of Eugen Gutmann, co-founder of the Dresdner Bank AG established in Dresden in 1872. Fritz Gutmann was granted Dutch nationality in 1924. From 1924, he and his family lived on the Bosbeek country estate near Heemstede (hereafter also referred to as: Huize Bosbeek), where he accumulated an extensive art collection. From 1939, the increasingly ominous international situation forced the Gutmann-Von Landau couple to sell or transfer abroad as many of their works of art as possible. For instance, in three transactions, Fritz Gutmann sold a significant number of art objects to German art dealers Böhler and Haberstock during the occupation. On 26 May 1943, the Gutmann-Von Landau couple were escorted out of Huize Bosbeek by the SS, on a journey to Berlin. They were made to believe that this journey would continue “nach dem Süden” (possibly Italy). They were, however, transferred to the Theresiënstadt concentration camp, where Fritz Gutmann was killed in 1944. His wife perished the same year in Auschwitz. The couple’s two children, Bernhard Eugen Friedrich Wilhelm Gutmann (later: Bernard Goodman, 1914-1994) and L.V.G. (born in 1919, one of the applicants), survived the war. After the war, they endeavoured for years to trace and recover the lost family property.
3.2. In 1751, painter Jacob de Wit was commissioned to decorate the drawing room, i.e. the great hall, of Huize Bosbeek in Heemstede. Apart from painting the ceiling with images of Bacchus and Ceres on clouds, he produced the currently claimed grisaille as an overdoor for the entrance to the drawing room. The ceiling painting can still be seen in Huize Bosbeek, as opposed to the overdoor, which at a certain point in time was removed from the wall panelling.
3.3. During the Second World War (until the confiscation by the Nazis), Huize Bosbeek was owned by Fritz Gutmann. In relation to the grisaille, the applicants referred to an inventory that came with a contract of sale dated 24 March 1942, under which Fritz Gutmann sold several numbered works of art to Böhler and Haberstock. This list includes, under the heading ‘Grosser Saal’, under number 64, the objects ‘1 grosses Deckengemälde von De Wit’ and ‘1 Grisaille von De Wit’. The following is written by hand after the first item mentioned above: “gestr. lt. Bf 5/10/42”. The following is written after the last item mentioned above, which is probably the currently claimed artwork: “da, soll zurück”. The number 64 is also crossed out by hand. Another document relating to the contract of sale of 24 March 1942 states the following about number 64 on the list: “Gestrichen von der Liste”. This suggests that the disputed grisaille was not ultimately sold to Böhler and Haberstock in 1942.
3.4. Documentation from the archives of the lawyer K.F. Mannheimer in the Netherlands Institute for War Documentation (NIOD) suggests that the currently claimed grisaille was still present in Huize Bosbeek at the time the Gutmann-Von Landau couple left the Netherlands on 26 May 1943. Mannheimer represented Bernard Goodman and L.V.G. in the actions for damages after the war in Germany, for which, on 29 November 1957, L.V.G. sent him, among other things, “verschillende brieven van de heer Westerbeek, die destijds bij mijn vader op kantoor was”. In a letter dated 1 October 1945, J.E. Westerbeek stated that he had been associated with the N.V. Trust & Administratie Maatschappij (Trustenad) in Amsterdam since 1942 – this was a company set up in 1921 to serve the commercial interests of Fritz Gutmann and his brothers and sisters – through which he came into close contact with the Gutmann-Von Landau couple. In this letter, Westerbeek stated that, after the Gutmann-Von Landau couple’s departure for Berlin on 26 May 1943, he had ventured to remove “de Grisaille en de plafondschildering in de Grote Zaal van de gebr. van Eyck” from Huize Bosbeek. He apparently did this because he was afraid that these works of art would otherwise have been “weggesleept”. The Committee assumes that Westerbeek was mistaken in the attribution of the artworks to these artists and that the grisaille he mentioned is the currently claimed work of art. In his letter dated 1 October 1945, Westerbeek also wrote that in the process of removing the ceiling painting and the grisaille, he was disturbed by “een der hoogste figuren van de N.S.V.” [National Sozialistische Volkswohlfahrt, Committee], after which the ceiling painting had to be put back in place. One of the things Westerbeek wrote in his letter about the condition of Huize Bosbeek after liberation was that the “beschilderingen van de Gebr. van Eyck” were still there.
3.5. On 11 August 1941, the occupying forces enacted Regulation 154/1941, under which measures were taken to liquidate Jewish immovable property and mortgages. Pursuant to this regulation, all Jewish immovable property and mortgages were registered with the Niederländische Grundstückverwaltung (NGV), which assumed control of these goods. Once verified by the Vermögensverwaltung- und Rentenanstalt (Office of Property Administration and Pensions, VVRA), the rental income and sales amounts were transferred to the Liro bank. Huize Bosbeek came under administration of the NGV on 6 August 1942. On 14 February 1944, the NGV sold the country estate for NLG 135,000 to the social welfare company National Sozialistische Volkswohlfahrt eingetragener Verein (NSV) in Berlin. Of the sale price, an amount of NLG 65,000 was allocated to settle the revolving mortgage on one of the immovable properties on behalf of the Trustenad in Amsterdam. The Committee did not find any specific information on the grisaille in the documentation from the National Archives of the Netherlands concerning the (post-war administration of the capital of) the NGV and the NSV.
3.6. A day report by the Haarlem municipal police dated 4 June 1945 in the Noord-Hollands Archive states that Huize Bosbeek was in a state of neglect and that the wall and ceiling paintings had disappeared. Further details on the paintings that had disappeared were not given. The Westerbeek letter to L.V.G. dated 1 October 1945, outlined here under 4, does however indicate that the currently claimed grisaille was still in Huize Bosbeek after the war. In this letter, Westerbeek outlines, among other things, the fate of “de Grisaille en de plafondschildering in de Grote Zaal” during the war (which, the Committee assumes, he erroneously attributes to “de gebr. van Eyck” instead of De Wit). He then writes: “Het huis is er niet beter op geworden, is n.l. flink verwaarloosd, evenals de tuin. De beschilderingen van de Gebr. van Eyck zijn nog aanwezig”. In a letter from Westerbeek to L.V.G., dated 17 November 1945, he refers to “Uw schrijven van 14 October”. This latter letter by L.V.G. (the contents of which the Committee is not familiar with) is probably a reply to Westerbeek’s letter dated 1 October 1945.
3.7. In a summary of a July 1945 day report from the Haarlem municipal police, it is mentioned that at that time there was a boarding school for children of NSB parents at Huize Bosbeek. This boarding school apparently lasted a few years. The heirs of Fritz Gutmann were given (formal) control of Huize Bosbeek again on 5 May 1945. Together with the Trustenad (i.e. the company that administered certain interests of the Gutmann family, see under 4), the heirs then concentrated on regaining their rights of ownership in relation to the country estate. In its ruling of 7 January 1950, the Afdeling Rechtspraak van de Raad voor het Rechtsherstel [Jurisdiction Department of the Council for the Restoration of Rights] considered that, apart from a few minor points, the claims of the Gutmann party and the Trustenad could be awarded and it reinstated their ownership rights to the country estate. To this end, the Council for the Restoration of Rights nullified the agreement the NGV had used to sell Huize Bosbeek to the NSV, as well as the settlement of the Trustenad’s mortgage claim and the mortgage cancellation carried out by the Treuhänder (administrator) of the Trustenad. The ruling also states that an agreement has been reached between the parties “dat de N.S.V. “ter algehele verrekening van huren en lasten zomede van tijdens de bezetting aan het onroerend goed toegebrachte schade” aan partij Gutmann zal betalen een bedrag van f. 19.669,48”. No reference was found during the research to (an entry that specifically related to) the currently claimed grisaille.
3.8. On 29 December 1950, Fritz Gutmann’s heirs sold Huize Bosbeek to the Saint Hieronymus Aemilianus foundation in Amsterdam (Congregation of the Sisters of Providence). The deed of sale makes no separate reference to De Wit’s grisaille or ceiling painting nor to any other works of art destined for Huize Bosbeek.
3.9. The archive of the Rijksdienst voor het Cultureel Erfgoed [Netherlands Cultural Heritage Agency] (RCE) contains a note dated 26 March 1954 from D.F. Lunsingh Scheurleer, Government Inspector for movable monuments, from which it can be ascertained that the grisaille was found in the basement of Huize Bosbeek during the inspection. According to Lunsingh Scheurleer, the work of art was severely damaged, but could still be saved with immediate restoration. Apparently, the Sisters of Providence handed over the grisaille to the Dutch State via Lunsingh Scheurleer.
3.10. According to documentation in the archives of the RCE and the Museum, the currently claimed grisaille was loaned to the Provincial Museum of Drenthe by the Dienst voor ’s Rijks Verspreide Kunstvoorwerpen [Service for Dispersed Government-owned Art Objects, DRVK] in The Hague in the 1950s. In 1964, the Province of Drenthe finally purchased the currently claimed work of art from the State of the Netherlands for the museum in question and the Ontvangershuis in Assen. The purchase price for the grisaille was NLG 800.
3.11. In a letter dated 7 May 2010, the Holocaust Claims Processing Office in New York sent the Museum a letter from the applicants dated 5 May 2010. The letter said that the applicants would like to receive a proposal from the Museum for the restitution of the work of art to them as rightful owners. The subsequent correspondence between the Museum and the applicants led to an August 2011 joint request to the Committee for binding advice.
4. The applicants’ position
The applicants declare that L.V.G. (one of the applicants) lived in Huize Bosbeek until the beginning of the Second World War, and that she remembers the grisaille and its position above the door to the drawing room very well. The applicants claim that the Gutmann-Von Landau couple then lost possession of the currently claimed work of art when, on 26 May 1943, they were deported by the occupying forces, and that this loss of possession was a direct result of the Nazi occupation of the Netherlands. Their position is that when Huize Bosbeek was sold in 1950, the grisaille was not considered part of the property, and that both parties involved in this sale assumed that the work of art in question was no longer there. In connection with this, the applicants state, among other things, that:
- after visiting Huize Bosbeek in November 1945, Bernard Goodman informed his family that there were no possessions of his parents in the house anymore, and that bare walls were all that remained;
- children of members of the Dutch National Socialist Movement who were housed in Huize Bosbeek after the war testified that when they arrived at Huize Bosbeek, only the “boilers and brooms in the basement” had not been stolen or destroyed during the war;
- the grisaille was not mentioned in the 1950 Huize Bosbeek deed of sale;
- Mgr. J.A.A. Starrenburg, priest and superior of the Congregation of the Sisters of Providence, believed that the grisaille had been stolen by the Germans, and testified that the work of art was not in Huize Bosbeek;
- the grisaille was hidden in the basement and that it was not found by the Congregation of the Sisters of Providence until 1954;
- despite the purchase of Huize Bosbeek in 1950, the Congregation of the Sisters of Providence did not regard the grisaille as its property, but transferred it to the DRVK.
The applicants also point out that the grisaille cannot be considered as part of the Huize Bosbeek property, as the work of art was movable and was in fact moved. According to S.G., his family had assumed that this work of art had been stolen by the occupying forces until he discovered the grisaille in the Museum in 2010. The applicants note that in the 65 years that they have been dealing with the Dutch authorities, they have never been told that the grisaille was in their [the Dutch authorities’] possession. The Government Inspector for movable monuments was believed to have been cognisant of the fact that the grisaille was part of the Gutmann collection, but not to have made any attempts to inform the family of this or offer compensation. According to the applicants, on discovering the grisaille, the Congregation of the Sisters of Providence did not make any attempts to return it to the Gutmann family either.
With regard to the aforementioned letter from J.E. Westerbeek dated 1 October 1945, the applicants also claim that the motives for writing this letter were at best self-serving and that the veracity of this letter is doubtful. Furthermore the applicants state that it is unclear whether the letter was actually sent at all. According to S.G., his aunt L.V.G. told him during a telephone conversation that she could not remember having received this letter. His aunt also told him that the grisaille never came up for discussion when she met Westerbeek in 1946.
Furthermore, the applicants questioned the Museum’s legal position and stated that the Museum’s right of ownership is not inviolable.
5. The Museum’s position
The Museum states that the grisaille was still in Huize Bosbeek when this house was sold to the Congregation of the Sisters of Providence by Fritz Gutmann’s heirs in 1950, and that – like Jacob de Wit’s ceiling painting – it was considered part of the property at the time. Its position is that the painting was legally acquired by the State from the Congregation of the Sisters of Providence, and that it was subsequently acquired legally and in good faith by the Museum from the State in 1964. The Museum has informed the Committee that it will hold the State liable for loss of the grisaille, if a decision is made to return the artwork.
The Museum states that it is unknown whether the provenance of the currently claimed work was researched before it was acquired.
About the importance of the work of art to the grisaille’s owner/keeper, the Museum declares that the work of art is part of the permanent exhibition. The work currently hangs in a period gallery of the Ontvangershuis, one of the Museum’s buildings, where it is incorporated in a wall above a door.
6. The task of the Committee
Under Article 2, paragraph 2 of the Decree, the Committee has the task of providing a binding opinion to parties concerning disputes over the restitution of items of cultural value between the original owner who relinquished possession involuntarily as a consequence of circumstances directly related to the Nazi regime or their heirs and the current owner, other than the State of the Netherlands. In accordance with Article 2, paragraph 5 of the Decree, the Committee will make a recommendation in accordance with the requirements of reasonableness and fairness. This opinion is binding within the meaning of Section 7:900 of the Dutch Civil Code.
7. Assessment of the dispute
7.1. In accordance with Article 3 of the Regulations on the binding opinion procedure, the Committee firstly states that to form its binding opinion, she can take into consideration deliberations that concern the circumstances in which the possession of the work was lost, the extent to which the party requesting restitution has made an effort to retrieve the work, as well as the period and circumstances in which the current owner acquired the work and the investigation carried out by the current owner before the work was acquired. In addition, the respective importance of the work for both parties and for the public art collection can be taken into consideration. Internationally and nationally accepted principles such as the Washington Principles and the government’s line of policy concerning the restitution of stolen works of art can be considered in so far as the Committee believes that they apply by analogy to the case in question.
7.2. The Committee has ascertained that the dispute between the applicants and the Museum has not already been settled definitely. In this case, the Committee has found no evidence of legal proceedings or a legal ruling in relation to the current dispute. Nor have the applicants at any point in the past relinquished their rights to the grisaille. As such, the Committee considers both parties’ cases admissible.
7.3. As already stated above, the applicants claim that the Museum’s right of ownership is not inviolable. They have claimed, among other thing: “There is no provision under common law to justify the Dutch State’s assumption of ‘good title’ […]” and: “Accordingly ‘good title’ was not transferred to the Rijksinspecteur voor Roerende Monumenten nor ultimately to the Drents Museum”. The Committee rejects this argument, whatever its accuracy, because the Dutch legal system is based on other principles than those of common law. According to Dutch law, it must be assumed that the Museum (the Province of Drenthe) is the current owner of the grisaille.
7.4. First and foremost, the Committee notes that this case rests on the question when and how the Gutmann family ultimately lost possession of the current work of art. The additional circumstances stated under 1 do not need to be addressed here, if the loss of possession does not prove involuntary as a consequence of circumstances related to the Nazi regime. The investigation has shown that the overdoor Allegory of autumn was the property of Fritz Gutmann during the occupation, as a part of Huize Bosbeek, and that the country estate was seized by the occupying forces in 1942 and then sold in 1944 and transferred to a Nazi institute, the NSV.
The applicants have claimed that the grisaille was removed during the occupation and that it is unclear where it was between 1942 and 1954. However, the Committee notes that the research has found that, after being dismounted, the grisaille remained in the house. The ruling by the Jurisdiction Department of the Council for the Restoration of Rights on 7 January 1950 nullified the sale and transfer of Huize Bosbeek to the NSV, as a result of which the Gutmann heirs’ right of ownership to Huize Bosbeek was restored after the war. As such, the grisaille, which was still present in the house, came to be in the Gutmann heirs’ possession once more.
According to a notarial deed of transfer, the Gutmann heirs transferred Huize Bosbeek to the Saint Hieronymus Aemilius foundation on 29 December 1950. As regards this transfer, the applicants claim that the heirs assumed that the work of art had been lost. However, the Committee notes that from the Westerbeek letter to L.V.G. dated 1 October 1945 it can be ascertained that the Gutmann heirs were aware or, in all reasonableness, could have been aware of the fact that the grisaille was still in the house.
As such, the Committee concludes that the Gutmann heirs lost possession of the grisaille five years after the liberation by selling Huize Bosbeek to the Saint Hieronymus Aemilius foundation on 29 December 1950.
7.5. The Committee deems in all reasonableness and fairness that the Museum does not have to return the grisaille Allegory of autumn by Jacob de Wit to the applicants. The Committee has taken into account:
- that it is very likely that, after the liberation, the grisaille was still present in Huize Bosbeek (probably in the basement);
- that it has to be assumed that Fritz Gutmann’s heirs were aware of this or, in all reasonableness, could have been aware of this;
- that in 1950 the Council for the Restoration of Rights restored the rights of the heirs of Fritz Gutmann to Huize Bosbeek, as a result of which the grisaille present there fell back into their possession;
- that the Gutmann family ultimately lost possession of the grisaille as a result of the transfer of Huize Bosbeek to the Saint Hieronymus Aemilius foundation on 29 December 1950;
- that this loss of possession cannot be considered an involuntary loss of possession directly related to the Nazi regime.
7.6. On the basis of the above-mentioned information, the Committee issues the following binding opinion.
The Museum is not obliged to return the grisaille Allegory of autumn by Jacob de Wit to the applicants or to pay them any compensation.
This binding opinion was given on 3 September 2012 by W.J.M. Davids (Chair), J.Th.M. Bank, P.J.N. van Os, D.H.M. Peeperkorn, E.J. van Straaten, I.C. van der Vlies (vice-chair), and signed by the chair and the director of the offices.
(W.J.M. Davids, chair) (E. Campfens, director of the offices)