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Binding opinion regarding Stern-Lippmann / Eindhoven City Council II

Stern-Lippmann/ Eindhoven City Council II

Report number: RC 5.178

Advice type: Binding opinion

Advice date: 12 September 2022

Period of loss of ownership: 1940-1945

Original owner: Private individual

Location of loss of ownership: unknown

Blick auf Murnau mit Kirche by Wassily Kandinsky (photo: Peter Cox, Eindhoven)

Summary of Binding opinion

The Committee has assessed an application dated 25 February 2019 for restitution of the painting Blick auf Murnau mit Kirche [known in English as View of Murnau with Church] by the artist Wassily Kandinsky. Eindhoven City Council became owner of the work in 1951, and it has hung in the Van Abbemuseum in Eindhoven since then. The Committee issued a binding opinion on 29 January 2018 rejecting an earlier application for restitution of this work because it was not possible to establish with the required degree of plausibility that Johanna Margarethe Stern-Lippmann (1874-1944), the Applicants’ Jewish grandmother/great-grandmother, had lost possession of the work during the Nazi regime.

The request for reconsideration by the City Council and the Applicants was submitted on the grounds of new facts that apparently had emerged from correspondence and lists of artworks that were not previously known to the Committee. The Committee has established that these documents do indeed contain new facts.

Those new facts and the investigation that was launched on the basis of them have given the Committee reason to conclude that it is now sufficiently plausible that the painting ceased to be in the possession of Margarethe Stern-Lippmann during the Nazi regime.

The Committee’s changed conclusion is based on the following three considerations. In accordance with the requirement in the Washington Principles, during the assessment the Committee took into account ‘unavoidable gaps or ambiguities in the provenance in light of the passage of time and the circumstances of the Holocaust era’.

  1. The art dealer Karl Legat sold the work to the City Council in 1951. The Van Abbemuseum’s inventory card contains the following provenance information: ‘vroeger verz. Kaufmann; door diens in Nederl. wonende dochter verkocht Légat. (Opg. Légat)’. [‘previously the collection of A. Kaufmann; whose daughter living in the Netherlands sold it to Légat. (Stated by Légat)’.] It has become plausible that ‘A. Kaufmann’ alludes to the artist Arthur Kaufmann (1888-1971). On the grounds of the new research, however, it is improbable that Legat purchased the work from him or his daughter, and it is extremely unlikely that Kaufmann ever possessed the work. The purchase price that Legat allegedly paid to Kaufmann’s daughter furthermore indicates that Legat did not acquire the work until after the war, while the Kaufmann family left the Netherlands before the occupation. The City Council has stated that it does not doubt that the work was purchased in good faith, but it does not wish to invoke good faith.
  2. It emerges from the documents newly submitted by the Applicants that until 1952 the Applicants’ family assumed that the Kandinsky was still in her possession. It was not until a valuer investigated which artworks were still actually present in June 1952 that it emerged that the Kandinsky was no longer in the family’s possession. On the grounds of the available information, the Committee considers it unlikely that the work ceased to be in the family’s possession after the occupation.
  3. The newly unearthed documents include a picture postcard of Blick auf Murnau mit Kirche by Kandinsky that art dealer Myrtil Frank’s wife sent to a third party in 1966. On the picture postcard she wrote: ‘This was our Kandinsky’. That message and the fact that during the war her husband was involved in transactions, or attempted transactions, relating to obtaining works owned by the Applicants’ grandmother/great-grandmother make it plausible that she and Myrtil Frank got their hands on Blick auf Murnau mit Kirche at some point.

Viewing 1, 2 and 3 together, the Committee concludes that it is plausible that the work did not leave the possession of Margarethe Stern-Lippmann before the occupation, that the family did not sell it after the occupation, that Margarethe lost possession of it during the occupation, and that it came into the possession of the Franks. Margarethe’s loss of possession took place during the occupation and she was a private individual who, because of her Jewish descent, belonged to a persecuted population group. On the grounds of criterion 3.1 of the assessment framework, the Committee therefore assumes that her loss of possession was involuntary. The Committee therefore rules that the Kandinsky painting should be returned to the heirs of the original owner.

Binding opinion

regarding the restitution application by, on the one hand

AA also on behalf of
(hereinafter referred to as the Applicants)

and on the other hand

Eindhoven City Council (hereinafter referred to as the City Council), represented by LL, managing director of the Van Abbemuseum,
(hereinafter 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), hereinafter referred to as the Committee.

1. The Application

The restitution application concerns the 1910 painting Blick auf Murnau mit Kirche (hereinafter referred to as the work) by the artist Wassily Kandinsky. The City Council has been the owner since 1951. The work is part of the museum’s collection. The Applicants contend that the work belonged to the collection of their grandmother/great-grandmother Johanna Margareta Stern-Lippmann (1874-1944). They state that they are the only legal successors pursuant to inheritance law of Margarethe Stern-Lippmann and they claim restitution of the work on the grounds of their contention that there was involuntary loss of possession as a result of circumstances directly associated with the Nazi regime.

The Committee previously issued a binding opinion on 29 January 2018 (RC 3.162) concerning the claim by the Applicants to restitution of the work.
In that binding opinion the Committee concluded that ‘…onvoldoende feiten en omstandigheden zijn komen vast te staan waaruit met de vereiste mate van aannemelijkheid kan worden afgeleid dat het werk tijdens het nazi-regime uit het bezit van Stern-Lippmann is geraakt. Oordelend naar maatstaven van redelijkheid en billijkheid zal de commissie adviseren dat de Gemeente niet is gehouden tot restitutie van het werk.’ [‘… insufficient facts and circumstances have been established on the grounds of which it can be deduced with the required degree of plausibility that the work ceased to be in the possession of Stern-Lippmann during the Nazi regime. Basing its considerations on the yardsticks of justice and fairness, the Committee will issue an opinion that the City Council is not obliged to restitute the work.’] Thereafter the Applicants initiated civil proceedings in which they requested, among other things, reversal of the binding opinion.
While those civil proceedings were taking place, on 27 September 2018 the Applicants approached the Committee with a request for reconsideration based on new facts that had apparently emerged from documents submitted by them, namely a list of ‘Kunstgegenstaenden aus Holland’ [‘Art objects from Holland’] by Otto Liebstaedter (1950), a ‘Bilderliste mit Preisschaetzungen’ [‘List of pictures with estimated prices’] by James Vigenevo (1950) and a letter by Fred Stern (1952). The Committee stated that this request was inadmissible on the grounds of the Committee’s regulations applicable at the time because it concerned a dispute in regard to which the Applicants had instituted legal proceedings before a court. In the civil proceedings there was a personal appearance of the parties on 15 January 2019 about which an official report was prepared. This report states that: ‘Partijen wensen in overleg te treden om tot een nieuw verzoek om bindend advies te komen. Daartoe zal eerst een bestuursbesluit van het college van burgemeester en wethouders genomen dienen te worden. Bij het verzoek zal het uitgangspunt zijn dat het reglement van toepassing is en dat er op voorhand geen beperkingen aan de opdracht worden verbonden. Daarbij vinden beide partijen het wenselijk dat de procedure bij de Restitutiecommissie zo ingericht wordt dat partijen in de gelegenheid worden gesteld om alles in te brengen om daarmee ook tot een beëindiging van het debat te kunnen komen. Als blijkt dat de Restitutiecommissie het gezamenlijk verzoek in behandeling neemt, zullen partijen de rechtbank verzoeken om doorhaling van de zaak met rolnummer C/01/335255/HA ZA 18-408. In afwachting daarvan wordt de zaak verwezen naar de rol van woensdag 27 februari 2019 voor doorhaling, dan wel doorprocederen. De rechtbank heeft deze tekst nadrukkelijk aan partijen voorgehouden en zij stemmen hiermee in.’
[‘The parties wish to enter into consultations in order to submit a new request for a binding opinion. The City Council’s Executive will first of all have to make an administrative decision to that end. The principle underlying the request will be that the regulations are applicable and that no restraints will be linked to the assignment beforehand. Furthermore, both parties consider it desirable that the Restitutions Committee procedure should be arranged so that the parties are given the opportunity to put everything on the table so that it is possible to bring the debate to an end. If the Restitutions Committee takes the joint request under consideration, the parties will ask the court to cancel the case with cause list number C/01/335255/HA ZA 18-408. In the meantime, the case will be placed on the cause list of Wednesday 27 February 2019 for cancellation or the continuation of legal proceedings. The court expressly presented this text to the parties and they agree with it.’]
In a resolution of 29 January 2019, Eindhoven City Council’s Executive agreed with a request for reconsideration of 27 September 2018 of the binding opinion of 29 January 2018.

In a joint letter of 25 February 2019, the City Council and the Applicants (hereinafter referred to as the parties) requested the Minister of Education, Culture and Science (hereinafter referred to as the Minister) for a new binding opinion on the grounds of new facts that the Applicants submitted with their request for reconsideration of 27 September 2018 and in the civil proceedings. By signing the letter, the parties declared that they accepted the Committee’s regulations applicable at the time for dealing with the request (approved on 3 December 2007; most recently amended on 28 January 2019) and considered the opinion to be issued by the Committee as binding. The civil proceedings were dropped on 27 February 2019.

2. The Procedure and the Applicable Assessment Framework

After the civil proceedings had been dropped, in a letter of 5 March 2019 the Committee stated that it would take the request under consideration on the grounds of the regulations as approved on 28 January 2019 because the Applicants had submitted documents that contain new facts or circumstances. A new Decree Establishing the Restitutions Committee, including a new assessment framework to be applied by the Committee, came into force on 22 April 2021. At the same time, so did new regulations that no longer contain an assessment framework for the Committee to use. The parties agreed that the new Decree Establishing the Restitutions Committee and the new regulations are applicable. The City Council let it be known in the way referred to below that it waived the right to invoke good faith, and therefore the substantive assessment of the restitution application remains limited to sections 2 and 3 of the new assessment framework (hereinafter referred to as the assessment framework).

The Committee took note of all the documents submitted by the parties. It forwarded to the other party copies of all documents. The Committee furthermore submitted research issues to the Restitution of Items of Cultural Value and the Second World War Expertise Centre of the NIOD Institute for War, Holocaust and Genocide Studies; (hereinafter referred to as the ECR). The ECR conducted much of the supplementary research into the facts during the COVID-19 pandemic (January 2020 to March 2022). The significant delay in completing their overview of the facts was due in part to this. The findings of the investigation are recorded in the overview of the facts. On 7 July 2022 two members of the Committee carried out archival research themselves in the New York Public Library.

Identity of the parties

In the first instance the Applicants submitted a transcript of a certificate of inheritance executed on 1 April 2011 before M.R. Meijer, notary in Amsterdam, and a certificate of inheritance executed on 16 June 2016 before G.W. Gramser, notary in Amsterdam. It emerged from these certificates that the then Applicants were the heirs of Margarethe Stern-Lippmann. One of these Applicants, MM, died on 29 May 2019. The Committee received a transcript of a certificate of inheritance executed on 17 March 2020 before D.S.R. Volmer, notary in the municipality of Gooise Meren, which establishes her succession. It follows from the three certificates referred to above that the Applicants are the current heirs of Margarethe Stern-Lippmann. The Committee furthermore took note of the authorizations issued by the other Applicants authorizing AA. It emerges from the administrative decision of Eindhoven City Council’s Executive of 29 January 2019, referred to in section 1 above, that LL has been authorized by the City Council.

Chronological overview of the committee’s actions and the responses to them

  • On 5 March 2019 the Committee asked the ECR for ‘… commentaar op de bij het verzoek van AA van 27 september 2018 gevoegde documenten, in het licht van de over dit geschil bekende feiten (zoals vermeld in het Feitenoverzicht en het Bindend Advies in RC 3.162).’ [‘… comments on the documents enclosed with the request from AA of 27 September 2018 in the light of the known facts relating to this dispute (as recorded in the overview of the facts and the binding opinion in RC 3.162).’] The Committee provided the ECR with a scan of the aforementioned letter. With the letter there were seven appendices, each comprising one or more documents.
  • On 4 April 2019 the ECR sent its findings in a note with appendices to the Committee, which discussed those findings on 16 April 2019.
  • On 17 April 2019 the Committee asked the ECR to conduct additional research into the following subjects:
    – Anne J. Olthoff, referred to on page 3 of ECR’s note of 4 April 2019 (this name came up in the new documents submitted by the Applicants on 27 September 2018);
    – the art dealer Arthur Kauffmann, who was mentioned in footnote 270 of the overview of the facts (RC 3.162) (the name A. Kaufmann is noted on the museum’s inventory card). In addition to this Arthur Kauffmann, the ECR also investigated other people with the name A. Kauf(f)mann. The Committee endorsed this approach.
  • On 18 April 2019 the Committee informed the parties about progress with the case and, after consultation with the ECR, sent them the note of 4 April 2019 as a draft for correction and additional information. The Applicants responded in a letter of 22 April 2019 in which they spelled out what they considered to be factual inaccuracies, gaps and speculative remarks in the note. The City Council responded to the note on 10 May 2019 and told the Committee ‘… dat zij in aansluiting op het in 2009 gestarte herkomstonderzoek voor het project Museale Verwervingen vanaf 1933 onderzoek heeft gedaan naar “A. Kaufmann”.’ [‘… that further to the provenance investigation for the project Museum Acquisitions since 1933, which was started in 2009, it had investigated “A. Kaufmann”.’] The City Council also submitted a MEMO Arthur Kaufmann. On 10 May 2019 the Committee also forwarded to the ECR the parties’ responses to the note.
  • On 16 May 2019 the Applicants sent additional documents to the Committee, namely a memorandum by Frederic Stern, a letter by Otto Liebstaedter about 11 paintings that had been valued before 1952, and a letter by Annie Vivegeno-Stern of 29 October 1950 about the ‘Bilderliste’ [‘List of pictures’] prepared by her husband James.
    Op 12 June 2019 the ECR sent the Committee an amended version of the note of 4 April 2019. This amended version addresses the parties’ responses and includes editorial improvements.
  • Op 25 June 2019 the Committee sent the amended version of the note to the parties and invited them to respond. At the same time the Committee commented that the results of the additional investigation by the ECR into ‘Kaufmann’ and ‘Olthoff’ were awaited and that it was not known when these results would be available. On 16 July 2019 the City Council stated that it had no substantive comments on the note. Op 9 August 2019 the Applicants gave their comments on the amended note and added a few appendices, including statements by sworn German translators and findings of a document expert.
  • The results of the additional research are recorded in a draft investigation report and – at the request of the Applicants and the City Council – were sent simultaneously on 24 May 2022 to the Committee and to the parties for additional information or comments. The Applicants and the City Council responded separately by e-mail on 10 June 2022 and made no remarks about the draft investigation report they had received.
  • On 7 July 2022 a committee delegation conducted research into the artist Arthur Kaufmann in the Manuscript and Archives Division of the New York Public Library (NYPL). A research report was prepared by the committee members involved.
  • The final overview of the facts was approved on 8 July 2022.
  • In a letter of 8 July 2022, the City Council notified the Committee that it waived the right to invoke good faith. The City Council furthermore stated that it does not doubt that it purchased the work in 1951 in good faith.
  • The final overview of the facts and the research report by the committee members who conducted research in the NYPL were e-mailed to the parties on 15 July 2022.
  • The parties stated on 19 July and 20 July 2022 respectively that they had no comments on the documents sent to them.
  • On 16 August 2022 the Committee sent its draft binding opinion to the parties.
  • In an email of 18 August 2022, the applicants stated that they do not want to use the opportunity to respond to the draft binding opinion. In an e-mail van 5 September 2022, the City Council / Van Abbemuseum stated they had no comments.

3. Establishing the Facts

The Committee establishes the following facts on the grounds of the literature and archival research that was conducted in case RC 3.162 and in this reconsideration case and that involved bodies and individuals in the Netherlands, Germany, Israel, the United States and elsewhere.

The Stern-Lippmann family: Margarethe and Siegbert Stern-Lippmann and their four children

Johanna Margareta Lippmann was born on 6 January 1874 in Berlin. She married Samuel Siegbert Stern (1864-1935), who, like herself, was of Jewish descent and was a co-owner of the textile business Graumann & Stern. The couple lived in Babelsberg, now a district of Potsdam, and had four children: Annie Regina Stern (1899-1989), Hilde Sophie Stern (1901-1984), Hans Martin Stern (1907-1953) and Luise Henriette Stern (1909-1944). In 1924 Annie Stern married the Dutch merchant and art dealer James Vigeveno. In 1927 her younger sister Hilde married met Otto Liebstaedter, a book dealer of German Jewish descent. Son Hans Stern married Rosa Marie Czellitzer, the daughter of a Jewish ophthalmologist from Berlin. In 1934 the youngest daughter, Luise, married Herbert Hayn, a clothing manufacturer also of German Jewish descent

Mr and Mrs Stern owned a substantial art collection. A will drawn up by or for the couple in 1924 refers to 144 numbered objects and artworks, including over 100 paintings and drawings. One painting by Kandinsky, designated as ‘Landschaft’ [‘Landscape’], is mentioned in this will. The Applicants submitted a copy of a transcript of a typescript of this will, on which it is stated: ‘Verkündet am 14. Oktober 1935’. [‘Proclaimed on 14 October 1935’.] This means that the will was opened on the said date, after the death of Siegbert Stern, by a judicial authority and proclaimed valid.

It is not known when the Sterns purchased the painting by Kandinsky. A part of the couple’s collection can be seen in an album containing photographs of the interior of their home in Babelsberg. One of the photographs in the album is of a room with two paintings on the wall, one of them being the said work by Kandinsky. Further artworks can be seen in other photographs, including the painting The Circumcision, about which the Committee advised in case RC 1.44. A photography expert who examined the album at the request of the Committee concluded that the album was compiled between around 1915 and 1940. According to the photography expert, it is not possible to give a more precise dating for the photograph in which the work being claimed be seen.

Persecution of the family and flight from Germany to the Netherlands in the 1933-1938 period

After Hitler came to power in January 1933, the existence of the Sterns and their children became increasingly threatened because of their Jewish descent. Hilde Liebstaedter-Stern and Luise Hayn-Stern and their husbands left for the Netherlands immediately in 1933. Their father, Samuel Siegbert Stern, died in Berlin in August 1935. Annie Vigeveno-Stern and her family fled to the Netherlands the following year. The Stern children urged their mother to emigrate too because she was being harassed by the Nazis. Her private chauffeur Erich Stritzke, who had worked for the Sterns since 1925, stated the following after the war: ‘Frau Stern war in dem kleinen Ort Babelsberg sehr gut bekannt und erfreute sich, da sie als wohlhabend galt, der unangenehmsten Aufmerksamkeit der Nationalsozialisten.’ [‘Mrs Stern was very well known in the small community of Babelsberg and was happy there. She was at the receiving end of the most unpleasant attention of the National Socialists because she was considered wealthy.’]

Margarethe Stern-Lippmann left Babelsberg in the spring of 1937 and settled in the spa town of Badenweiler in Southern Germany. She took a small proportion of her possessions with her when she moved. Persecution of the Jews became even worse during the course of 1938 and she fled to the Netherlands via Switzerland. Initially she stayed with her daughter Annie and her family in Bloemendaal. In 1938 Hans Stern also fled to the Netherlands with his wife and children.

Meanwhile, from Switzerland, Margarethe had instructed Konstantin Balaszeskul, a Berlin tax advisor, to act as her authorized agent and take care of her financial affairs in Germany, including managing and liquidating her assets. This was a complex task because the Nazi authorities were keeping a close eye on the possessions of Jewish emigrants. Balaszeskul sold off the property, including the mansion in Babelsberg, which was finally sold on 2 November 1940. He also arranged to have the household contents moved to the Netherlands. In order to obtain permission for this from the German authorities, Balaszeskul had to submit an inventory and provide an opportunity for the goods to be inspected. A number of gold and silver objects were removed from the household effects because they had to be surrendered on the grounds of anti-Jewish measures.

The household contents were probably moved to Amsterdam in December 1939. Four lists of possessions were found. An entry on one list refers to 38 ‘Bilder’ [‘Pictures’], while another mentions ‘1 Ölbild’ [‘1 oil painting’] in the ‘Groβes Wohnzimmer’ [‘Large living room’]. It also emerges from the documentation that after December 1939 Balaszeskul sold two paintings by Fidus (pseudonym of Hugo Höppener) and Max Pechstein and eight sculptures for Margarethe Stern-Lippmann.

The fate of Margarethe in the Netherlands until her deportation to Auschwitz

According to the haulage company’s invoice, the household effects were sent to ‘Amsterdam – Doklaan’. It is not clear which paintings were shipped and where they ended up. It is not possible to rule out the possibility that some paintings came to the Netherlands separately from the household effects.

Margarethe Stern-Lippmann was registered as living at various addresses in Bloemendaal and Amsterdam during the 1938-1940 period. In the autumn of 1940 Margarethe moved to Hilversum, where she once again lived at several addresses, including Wernerlaan 30.

The Nazi regime declared Margarethe Stern-Lippmann stateless in 1941. In that same year she tried to obtain an emigration visa for herself and her family. Part of this process involved putting the painting Portrait of Miss Edith Crowe by Fantin-Latour at the disposal of the Dienststelle Mühlmann (Mühlmann Agency), a German organization that acquired works of art for Germany. This painting was not in Margarethe’s collection. She bought it at the end of 1941 especially for this purpose from the D’Audretsch art gallery in The Hague for NLG 40,000. The German Jewish art dealer Myrtil Frank was an intermediary in this purchase. During the 1941-1942 period he lived within walking distance of Margarethe’s residence in Wernerlaan in Hilversum. Frank handed over the painting to the Mühlmann Agency but the emigration visa was never issued to Margarethe.

Information discovered in archives reveals that in the 1941-1942 period Myrtil Frank was also involved in various sales, or attempted sales, of artworks from Margarethe’s collection, including paintings by Anton Mauve, Jacob Jordaens and Lovis Corinth.

In 1942 or 1943, during the German occupation, Margarethe went into hiding in Bussum at the home of the actor and theatre manager Johan Brandenburg and his wife Cornelia (Corry) Vuijk. Margarethe was betrayed and arrested there on 27 April 1944. She was imprisoned in Amsterdam and ten days later was transported to Westerbork transit camp, where she, being a ‘criminal’, was incarcerated in the penal barracks. She was deported to Auschwitz on the first available train and was murdered virtually immediately after her arrival.

Fate of Margarethe and Siegbert’s children in the Second World War

Their daughter Luise and her husband Herbert Hayn also became victims of the persecution of the Jews. Their little daughter Doris survived while in hiding. Hilde and Otto Liebstaedter-Stern and their daughters Marla and Hedi also survived while in hiding in Nunspeet, where they were domiciled, and elsewhere. Hans and Annie and their families were able to escape to the United States in time.

Hilde Liebstaedter-Stern wrote the following to a friend shortly after the liberation:
‘Von unserer ganzen grossen holländischen Familie sind Otto, ich, Marla, Hedi als einzige übrig geblieben. … Meine Mutter war in Bussum geschuild, ist auch im apr. 44 gepackt. Meine Schwester u. Schwager waren erst in Vugt, sind dann nach Auschwitz gekommen. All meine Tanten, Onkels, Vettern sind verschleppt. Ihr besieht, wie einsam es um uns geworden ist …. Dass Ottos Mutter in März 43 nach Westerbork gekommen ist, wisst Ihr wahrscheinlich. Sie ist seit dem auch verschollen. … Otto ist so mager geworden, dass Ihr ihm kaum erkennen werdt, aber sonst gut im Stande, und wir haben alle sehr viel in dieses Zeit gelernt. … Wir wollen vorlaufig in Nunspeet bleiben u. hoffen, in ca. 4 Wochen ein eigenes Haus zu beziehen.’
[‘Out of our entire big Dutch family, Otto, I, Marla and Hedi are the only ones left. … My mother went into hiding in Bussum, but was also arrested in April 44. My sister and brother-in-law were first of all in Vugt, but then they were taken to Auschwitz. All my aunts, uncles and cousins were deported. You can see how lonely it has become for us …. You probably know that Otto’s mother was taken to Westerbork in March ’43. She’s been missing since then too…. Otto has become so thin that you would hardly recognize him, but otherwise he is well, and we all learned a lot during those days…. We want to stay in Nunspeet for the time being, and we hope to move into a home of our own in about 4 weeks.’]

Was ‘Blick auf Murnau mit Kirche’ a part of Margarethe’s estate after the Second World War?

It is not clear what happened to a large part of Margarethe’s art during the Nazi era. When she fled to the Netherlands in 1938, she was not able to take all her possessions with her and she had to sell artworks at around that time. She also sold works of art during the German occupation of the Netherlands.

After the war, the family made attempts to get back artworks that they deemed to be missing, as can be seen, for instance, from declaration forms at the Netherlands Art Property Foundation (hereinafter referred to as the SNK).

Starting in 1950, Margarethe’s descendants concentrated primarily on sharing out the art she owned that they assumed was still present (in Amsterdam and Nunspeet). As the only children and/or children-in-law still living in the Netherlands, Otto and Hilde Liebstaedter-Stern played an important part in this. The new material submitted by the Applicants makes it clear that the other children and/or children-in-law were also closely involved in dividing up the art. The picture that emerges from the documents is one of a family whose members were getting on well with each other and were trying to reach a harmonious settlement of the estate. Fritz Martin (Fred) Stern, a nephew of Siegbert Stern who lived in New York, acted as executor.

Until June 1952 the descendants assumed that the painting ‘Blick auf Murnau mit Kirche’ – which they referred to as ‘Landschaft’ [‘Landscape’]– was part of the undivided estate. This emerges from the following documents:

• At some point between May and October 1950, Hilde’s husband Otto Liebstaedter drew up a list of ‘Kunstgegenstaenden aus Holland’ [‘Art objects from Holland’]. He did this at the request of his sister-in-law Annie, who sent him a copy of the will to that end from the United States, and Hilde asked for ‘a complete list of the things which they still have in Holland, as well as the objects which have been sold by them’. Otto’s original list, which was probably handwritten, has not survived, but in 2019 the Applicants found a typed copy that was in the possession of descendants of Fred Stern in the United States. There are forty ‘Bilder’ [‘Pictures’], including the ‘Landschaft’ [‘’Landscape’] by Kandinsky, and nine sculptures on Otto’s list. He noted: ‘Ich habe verkauft bei Anne J. Olthoff für fl. 1990.- / nur keine Bilder’. [‘I sold works at Anne J. Olthoff for NLG 1990.- / just no pictures.’] He added: ‘Ich hoffe, dass es so gut ist’. [‘I hope I did the right thing.’] Eleven of the said paintings were in the Stedelijk Museum and in the Associatie Cassa building in Amsterdam. A letter by Otto during this period states that approximately thirty paintings were in his home in Nunspeet or ‘bei Freunden untergebracht’ [‘with friends’]

• On 29 October 1950 in the United States James Vigeveno drew up a ‘Bilderliste mit Preisschaetzungen’ [‘List of pictures with estimated prices’] on the basis of Otto’s list. It contains all the works mentioned by Otto but now with prices. James also underlined a number of works in red. Kandinsky’s ‘Landschaft’ [‘Landscape’] was among the works underlined in red. Its price was given as 500 dollars. Annie Vigeveno explains the additions in a letter of 29 October 1950 to executor Fred Stern: ‘Regarding the pictures, we are giving you enclosed an estimate of the values of the paintings from Otto’s list, and would strongly advise to have those with the red marks come to this country – either for sale or distribution among the heirs.’ In her letter Annie also mentions that she will send a copy of the ‘Bilderliste mit Preisschaetzungen’ [‘List of pictures with estimated prices’] to her brother Hans Stern.

• At the beginning of 1952 the family decided to have all art works valued by the Amsterdam art dealer and valuer Bernard Houthakker for the purposes of settling the estate. In view of this on 4 February 1952 executor Fred Stern wrote to Otto Liebstaedter as follows: ‘Ich schicke Dir also noch eine Kopie der wahrscheinlich vollstandigen Liste die ich im Oktober 1950 von James erhalten habe in zwei Exemplaren, damit Du sie als Grundlage benuetzen kannst.’ [‘So I am sending you a copy of what is probably the complete list, two copies of which I received from James in October 1950, so that you can use them as a basis.’] What Fred Stern called ‘wahrscheinlich vollstandigen Liste’ [‘probably the complete list’] refers to James Vigeveno’s ‘Bilderliste mit Preisschaetzungen’ [‘List of pictures with estimated prices’] of 29 October 1950 (which also includes Kandinsky’s ‘Landschaft’ [’Landscape’]).

Kandinsky’s ‘Landschaft’ [’Landscape’] is not on the lists of the undivided estate that were amended or drawn up from June 1952:

• In June 1952 Houthakker valued the works present in Nunspeet. A copy – newly typed because it was composed differently – of James Vigeveno’s ‘Bilderliste mit Preisschaetzungen’ [‘List of pictures with estimated prices’] was found in his records. There are handwritten notes on this copy. For example, alternative prices are written alongside James Vigeveno’s earlier estimates and Kandinsky’s ‘Landschaft’ [’Landscape’] has been crossed out. According to a handwriting expert brought in by the Applicants, the handwritten prices were noted by Houthakker, as were a few other comments. It is plausible that Houthakker was also the person who crossed out Kandinsky’s ‘Landschaft’ [‘Landscape’] on this copy.

• On 18 September 1952 Houthakker drew up an ‘expert’s certificate’ about 37 paintings, ‘alle behorende tot de nalatenschap van Mevrouw M.J. Stern-Lippmann en zich bevindende in diverse percelen te Nunspeet (Gld.) en te Amsterdam in het Stedelijk Museum en in het gebouw van de Associatie Cassa’ [‘that all belong to the estate Mrs M.J. Stern-Lippmann and that are present in various properties in Nunspeet (Gelderland) and in the Stedelijk Museum in Amsterdam and in the Associatie Cassa building’]. Kandinsky’s ‘Landschaft’ [‘Landscape’] is not on this certificate either.

• The estate was distributed among the heirs in 1954. Kandinsky’s ‘Landschaft’ [’Landscape’] is not mentioned on the distribution list.

• In 1955 J.P. Barth and Dr W.H.C. Schukking, financial and legal advisors to the family, prepared an overview of artworks in the estate ‘welke na 1945 niet meer in de boedel werden aangetroffen’ [‘that were no longer found among the household contents after 1945’]. Kandinsky’s ‘Landschaft’ [‘‘Landscape’] is not on this certificate either. Barth and Schukking sent this overview (hereinafter referred to as the Schukking list) to the SNK in 1955 and, in a slightly amended form, to the German authorities in 1958 and 1959.

The family was not sure of the extent of the estate until after Houthakker’s valuation in June 1952. In his 1950 ‘Liste von Kunstgegenstaenden aus Holland’ [‘List of art objects from Holland’] Otto Liebstaedter remarked: ‘Ich hoffe, dass es so gut ist’. [‘I hope I did the right thing.’] In his letter of 4 February 1952 to Liebstaedter, executor Fred Stern refers to the James Vigeveno’s ‘Bilderliste mit Preisschaetzungen’ [‘List of pictures with estimated prices’] as ‘wahrscheinlich vollstandigen Liste’ [‘probably the complete list’]. Spaces in Otto’s list where titles are supposed to be also point to this uncertainty. The Committee concludes from these and other indications that Otto prepared his 1950 list on the basis of the will and his own memory and that he did not himself see the artworks stored ‘in diverse percelen’ [‘in various properties’] after the war. Houthakker, on the other hand, travelled to Nunspeet in connection with valuing the artworks in order to inspect all the works still belonging to the collection.

December 1951: the museum buys the work from Legat. The museum’s inventory card

Research has revealed that the museum purchased the work in December 1951 for NLG 11,500 from the art dealer Karl Legat, who was of Austrian origin and was based in The Hague. The work is known in the museum as Blick auf Murnau mit Kirche.

The museum prepared a handwritten inventory card with the following provenance information: ‘Légat, Den Haag (1951) fl. 11.500-’ / ‘Vroeger verzameling A. Kaufmann; door diens in Nederl. wonende dochter verkocht Légat. (opg. Légat)’. [‘Légat, The Hague (1951) NLG 11,500-’ / ‘Previously the collection of A. Kaufmann; whose daughter living in the Netherlands sold it to Légat. (stated by Légat)’] On the grounds of museum correspondence and various dates on the card, it is plausible that this information was added after September 1953, and possibly not until 1955. This was after Legat died on 20 July 1953. In a letter of 30 October 1951 to Eindhoven City Council, in which the museum asked the City Council to purchase the work from Legat, the museum reported that: ‘Intussen is echter komen vast te staan dat de kunsthandelaar het schilderij voor F. 10.000 heeft gekocht.’ [‘It has meanwhile become known however that the art dealer bought the painting for NLG 10,000.’]

Investigation into A. Kaufmann

The Committee asked the ECR to conduct an investigation into A. Kaufmann because the museum’s inventory card states that the work had been part of A. Kaufmann’s collection and that his daughter, who lived in the Netherlands, sold the work to Legat. Three people with the name A. Kaufmann or A. Kauffmann emerged during the ECR’s investigation.

The first is the German Jewish art dealer and collector Arthur Kauffmann (1887-1983). The ECR approached a son of his, who is an art historian. He stated that his father was probably not the person referred to on the museum’s card: ‘He was a refugee from Germany who settled in London in 1938. Having been an art auctioneer in Frankfurt (Hugo Helbing), he became an art dealer in London. I do not think that he had close links with Dutch dealers in 1951 and he certainly did not have any daughters.’ He also wrote: ‘… I do not think that my father privately owned a Kandinsky painting before 1951.’

The ECR found out that the second person, the French Jewish draughtsman Albert Kaufmann (1903-1987) also had no connections with the Kandinsky, the Netherlands, Legat or the Stern family.

With regard to the third person, the Düsseldorf artist and art collector Arthur Kaufmann (1888-1971), the ECR’s investigation revealed that he did have such connections. This Kaufmann owned an art collection and was an admirer of Kandinsky. He had a son and a daughter. He lived in the Netherlands for a few years starting in 1933. From a social and geographic point of view, Arthur and his wife Lisbeth were close to the art dealers Karl Legat and Myrtil Frank and the children of the Stern family who had settled in the Netherlands. They were all members of the German Jewish refugee community and knew one another, be it directly or via family members or friends. The sources of and about Arthur Kaufmann consulted by the ECR contain no indications that he had owned a Kandinsky. The Kaufmann family soon left the Netherlands: Arthur in 1935, daughter Miriam in 1936 and Lisbeth and son Hans in 1937. The Kaufmann family was therefore no longer in the country when Margarethe Stern-Lippmann settled in the Netherlands in 1938.

The ECR’s draft investigation report of 24 May 2022 refers to a personal archive of Arthur Kaufmann in New York Public Library (NYPL). Because of the restrictions resulting from the COVID-19 pandemic, the ECR did not have the opportunity to examine this archive. Information requests from the ECR to the NYPL did not lead to any documents being provided either.

In view of the possible importance of this personal archive of Arthur Kaufmann, two members of the Committee travelled to New York to examine that archive. In that archive they found recollections by Arthur Kaufmann’s wife Lisbeth containing information about the art collection that she and her husband had built from the nineteen-twenties onward: ‘Arthur’s studio in the New Academy [in Düsseldorf] was rather far from our home now, and when people wanted to see his work they had to visit him there, because he made it a rule to decorate the walls of our apartment only with the paintings and drawings of other artists he had started to collect. He would either buy them outright or exchange for some of his own. So we had works by Gleize, Max Ernst, Otto Dix, Jankel Adler, Seehaus, Feininger, Karl Schwesig, Theo Champion, Walter Ophey, Uzarski, and others.’ Kandinsky is not mentioned in this summary, which is all the more striking because it emerged from the sources consulted by the ECR and various documents in the New York archive that Arthur very much admired Kandinsky. Furthermore, the recollections of both Arthur and Lisbeth Kaufmann are characterized by a lengthy writing style. Arthur’s memoires alone cover more than five hundred pages. In them he describes in detail, for example, his connections with well-known artists. Yet there is no mention of the acquisition of a Kandinsky in the aforementioned quote from Lisbeth’s memoires or in other documents in Kaufmann’s archive in New York.

Picture postcard from Flory Frank in 1966

The ECR, when researching the archive of art dealer Victor D. Spark in the Archives of American Art of the Smithsonian Institution in Washington, found a picture postcard that Flory Frank-Marburger sent to Spark in 1966. She was the wife of the aforementioned art dealer Myrtil Frank and a devotee of modern art. The picture on the postcard she sent is an image of Blick auf Murnau mit Kirche, and on it Flory wrote by hand: ‘This was our Kandinsky’.

Myrtil Frank – referred to above as an intermediary and dealer acting for Margarethe during the occupation – was a business partner of Karl Legat. Frank and Legat worked together closely during and after the occupation. During the war they both worked for the Mühlmann Agency, and as a result they were protected from deportation (unlike Frank, Karl Legat was not Jewish, but his wife, the photographer Meta Ehrlich, was).

Because of their German background, after the liberation Frank and Legat were faced with procedures concerning termination of their enemy status. Myrtil and Flory Frank received their declaration of termination of enemy status on 9 July 1947. They emigrated to the United States at the end of 1949. Legat and his wife Meta had their enemy status terminated on 27 April 1949. The management of their private and business-related assets by the NBI (Netherlands Property Administration Institute) ended in October 1951, in other words shortly before the purchase transaction between Legat and the museum.

4. Substantive Assessment of the New Restitution Application

Pursuant to section 2 of the assessment framework, the Committee must assess whether it is highly plausible that the work was the property of Margarethe Stern-Lippmann, and on the grounds of section 3 whether it is sufficiently plausible that Margarethe lost possession of the work involuntarily as a result of circumstances directly related to the Nazi regime.

Ownership requirements (section 2 of the assessment framework)

In its binding opinion RC 3.162, the Committee concluded that it is highly plausible that the work had belonged to Margarethe because it is mentioned in the 1924 will and can be seen in a pre-war photograph album submitted by the Applicants. The Committee sees no grounds for coming to a different conclusion. Moreover, the parties did not advocate this.

Involuntary loss of possession (section 3 of the assessment framework)

In its binding opinion RC 3.162, the Committee concluded that it was not sufficiently plausible that Margareta lost possession of the work involuntarily as a result of circumstances directly related to the Nazi regime.

The new documents submitted by the Applicants provided grounds for the Committee to have a new investigation conducted into the circumstances of the loss of possession. The comprehensive new investigation conducted by the ECR and the additional research done by two committee members in the NYPL have resulted in the Committee drawing a conclusion that is different from the one in its binding opinion RC 3.162. The different conclusion is based on the following considerations which, in accordance with principle 4 of the Washington Conference Principles on Nazi-Confiscated Art, involved taking into account ‘unavoidable gaps or ambiguities in the provenance in light of the passage of time and the circumstances of the Holocaust era’.

The museum’s inventory card states: ‘Légat, Den Haag (1951) fl. 11.500-’ / ‘Vroeger verzameling A. Kaufmann; door diens in Nederl. wonende dochter verkocht Légat. (opg. Légat)’. [‘Légat, The Hague (1951) NLG 11,500-’ / ‘Previously the collection of A. Kaufmann; whose daughter living in the Netherlands sold it to Légat. (stated by Légat)’] According to this statement, this provenance information is based on input from Legat. This provenance information was not put on the card until a few years after the City Council had purchased the Kandinsky. Research carried out by the ECR has revealed that it can only refer to the Düsseldorf art collector Arthur Kaufmann (1888-1971). He lived in the Netherlands from 1933 to 1935. His only daughter lived in the Netherlands from 1933 to 1936. The aforementioned provenance information would therefore mean that Legat purchased the work from this Kaufmann’s daughter in 1935 or 1936

If art collector Kaufmann had ever owned a Kandinsky, it would have been very much expected that he or his wife would have mentioned it in their extensive memoires. Arthur Kaufmann was, after all, a great admirer of Kandinsky, and in her recollections Lisbeth Kaufmann gave a detailed overview of the artists whose work they had acquired. Yet there is no reference in the aforementioned quotation from Lisbeth’s memoires or the other documents that they ever acquired a Kandinsky.
Furthermore, Legat sold the Kandinsky to the City Council in December 1951 for NLG 11,500, whereas according to a letter from the museum of 30 October 1951 it has become established that Legat paid NLG 10,000 to purchase the Kandinsky. Given the price trends, this indicates that Legat did not buy the Kandinsky until after the war, in other words many years after Arthur Kaufmann and his daughter had left the Netherlands, which is not consistent with the information on the card. Taking all this into account, the Committee concludes that the provenance information on the museum’s inventory card is not correct.

The inventory lists drawn up and copied by the Stern-Lippmann family during the 1950-1952 period reveal that until 1952 the family assumed that it still possessed the Kandinsky. The fact that the family included the Kandinsky in its inventory lists indicates that they did not check on the spot whether the artworks on the lists were still present. It is plausible that the family did not perceive that the Kandinsky was no longer in its possession until June 1952, when Houthakker valued the art that was still present and had inspected the art himself to that end. Given the cordial relations within the family that emerge from the documentation, it is furthermore unlikely that a family member sold the Kandinsky after the war – to Legat or someone else –without telling the others.

The Committee found information in other newly unearthed documents that provides further leads for answering the question of how and when the family lost possession of the Kandinsky, namely the statement by Flory Frank on a picture postcard that she sent to the art dealer Spark in 1966. The picture on the postcard is an image of Blick auf Murnau mit Kirche, and on it Flory wrote: ‘This was our Kandinsky’, which makes it plausible that Myrtil and Flory Frank got their hands on the work at some point. The Committee deems it likely that the Kandinsky ceased to be in Margarethe’s possession during the German occupation and came into the possession of the Franks. In addition to the aforementioned conclusions regarding the museum’s inventory card and the significance of the various inventory lists dating from the 1950-1952 period, the Committee also takes into account that Myrtil Frank had close contacts with Margarethe during the occupation and acted of several occasions as an intermediary in transactions or attempted transactions concerning works in her art collection.

In view of the above and principle 4 of the Washington Principles, the Committee comes to the conclusion that it is sufficiently plausible that Margarethe lost possession of the work during the German occupation of the Netherlands.

Since Margarethe was a private individual who, because of her Jewish descent, belonged to a persecuted population group, this means that her loss of possession was involuntary as a result of circumstances directly linked to the Nazi regime because it has not expressly emerged that the loss of possession was voluntary (criterion 3.1 of the assessment framework).

Conclusion with regard to the restitution application

The Committee concludes that it is highly plausible that the work Blick auf Murnau mit Kirche by Wassily Kandinsky came from the collection of Margarethe Stern-Lippmann and that it is sufficiently plausible that she lost possession of the work involuntarily as a result of circumstances directly related to the Nazi regime.
The Committee furthermore confirms that Eindhoven City Council, the current holder of the work, has let it be known that it waives the right to invoke good faith in regard to the provenance of the work when purchasing it.
In view of the assessment framework (criterion 3.1 and part 3 at the end of section 3), the upshot of all this is that the Committee will rule that the work is to be restituted to the heirs of Margarethe Stern-Lippmann referred to under 2.

5. Binding Opinion

The Restitutions Committee rules that the painting Blick auf Murnau mit Kirche is to be restituted by Eindhoven City Council to the heirs of Margarethe Stern-Lippmann referred to under 2.

This binding opinion was issued on 12 September 2022 by J. Kohnstamm (Chair), J.F. Cohen, S.G. Cohen-Willner, J.H. van Kreveld, D. Oostinga, E.H. Swaab (Vice-Chair) and C.C. Wesselink, and signed by the Chair and the Secretary.

(J. Kohnstamm, Chair)                                              (E.M. van Sterkenburg, Secretary)