The Terry House: Case Study about Donor Conditions

November 27, 2023

Adolphine Fletcher Terry wedding photo, 1910

By RaeAnn Bell

Donations are the lifeblood of many museum collections. Oftentimes, donors stipulate conditions restricting how a museum may use a gift. These restrictions might prevent the sale of an item, direct how a work is to be displayed, or require the performance of regular maintenance. Museums may become burdened when donor conditions are difficult to meet. To avoid this, many museums have gift acceptance policies that reject heavily conditioned items. Museums that accept restricted gifts open themselves up to litigation if they fail to adhere to the donor’s requirements.

The Arkansas Museum of Fine Arts (“AMFA”) and the City of Little Rock are embroiled in litigation concerning a historic house donated in 1977. The property, called the Terry House or the Pike-Fletcher-Terry House, was the childhood home of sisters Adolphine Fletcher Terry and Mary Fletcher Drennan.^[1] Terry initially granted the home to AFMA and Little Rock in 1964.^[2] The grant stipulated that the city and the museum must maintain the house and its grounds, and that the property can only be used for the advancement of the “cultural, artistic, or educational interests of the community.”^[3] If these conditions were not met, the house would revert to the heirs of Terry and Drennan.^[4] AMFA and the City of Little Rock took title to the property after Drennan’s death in 1977.^[5]

Background and the Lawsuit

The Terry House was built in 1840 by Albert Pike, a prominent lawyer, politician, and poet.^[6] In 1889, Captain John Fletcher, a former mayor of Little Rock, purchased the home from the defunct Arkansas Female College.^[7] Captain Fletcher had three children, Adolphine, John Gould, and Mary.^[8] John Gould Fletcher was a Pulitzer Prize winning poet associated with writers Ezra Pound and Amy Lowell.^[9] Adolphine Fletcher Terry was a major political activist and philanthropist.^[10] Terry lived in the house for most of her life, only leaving the property after the death of her husband.^[11]

The plaintiffs in the lawsuit are six heirs (grandchildren) of Terry and Drennan who filed their suit in October of 2021.^[12] They allege that AMFA and Little Rock have failed to meet the conditions set forth in the grant.^[13] Specifically, the heirs argue that the city and the museum violated the conditions by failing to use the property for the cultural interests of the community.^[14] Additionally, the heirs allege that AMFA did not perform necessary maintenance to the house thereby allowing it to fall into disrepair.^[15] AMFA has used the Terry House in several capacities, most notably as a decorative arts museum between 1985 and 2004.^[16] However, in June of 2021, representatives of AMFA informed the heirs that it no longer intends to use the property and it will not spend any additional money on maintenance.^[17]

At one time AMFA considered fixing the property. In both 2017 and in 2021, the city and the museum hired Mr. Tommy Jameson to estimate the costs of restoring the Terry House.^[18] His estimate was over one million dollars.^[19] Though we do not know AMFA’s motives for choosing not to fix the house, it is possible that the museum and the city cannot afford the repairs.

In June of 2023, Little Rock City Attorney Thomas Carpenter wrote a memo to the city board outlining his plans to return the property to the plaintiffs.^[20] Carpenter argued that because the museum and the city had not properly maintained the house, “effectively, the property has already reverted.”^[21] Carpenter’s memo did not specify why the city had failed to maintain the property, only that his office was going to comply with the reversion.

In response to Carpenter’s memo, Terry House Inc., a non-profit created by the plaintiffs, stated that it opposes the plan to return the property.^[22] Instead, the non-profit wants the city to honor the terms of the original grant.^[23] This contrasts with a press release posted on the non-profit’s Facebook page in February of 2022. In this release, the non-profit stated that it organized, in part, to “take title to the property, raise and receive funds for its restoration and operation and maintain the property for public purposes.”^[24] It appears that both the plaintiffs and the city are not currently prepared to restore the Terry House and maintain it as a cultural institution.

Cy Pres Doctrine

One possible solution that would allow the city to retain the Terry House and reopen it to the public, is to petition for cy pres relief. Cy pres relief allows a court to alter aspects of a charitable trust to allow it to continue when the conditions of the grant are impossible to fulfill.^[25] When cy pres relief is granted, a court can authorize a course of action that is the closest possible interpretation to the donor’s charitable intent, given the limitations of the grantee.^[26]

The Alfred Stieglitz Collection was subject to cy pres relief when its original grantee, Fisk University, became unable to care for the artworks. The Stieglitz Collection came into the hands of Fisk in 1949 when famed artist Georgia O’Keeffe donated her late husband’s art collection to the university.^[27] O’Keeffe required that Fisk not sell the artworks and that the pieces had to be displayed together as one collection.^[28] After more than fifty years owning the artworks, Fisk could no longer afford to maintain the collection in the manner specified by O’Keeffe.^[29]

In 2010, the Court of Appeals of Tennessee decided that cy pres relief was available to Fisk.^[30] The court approved Fisk’s plans to sell a fifty percent undivided interest in the collection to the Crystal Bridges Museum in Arkansas for thirty million dollars.^[31] Now, the entire Stieglitz Collection rotates between Fisk University and the Crystal Bridges Museum every two years.^[32] The court determined that this arrangement was the best alternative to O’Keeffe’s original grant because the collection remains intact and students at Fisk can still access the artworks for two out of every four years.^[33] Additionally, Crystal Bridges Museum’s location in Arkansas fits with O’Keeffe’s requirement that the collection be available to people living in the Southern United States.^[34] Here, cy pres relief allowed Fisk to keep the collection while splitting the burden of its maintenance with the Crystal Bridges Museum.

Cy Pres Relief for the Terry House

Cy pres relief might be the best possible solution to restore the Terry House as a cultural institution. Right now, both the plaintiffs and the City of Little Rock appear unable or unwilling to maintain the property. If an alternative arrangement were sought, and cy pres relief granted by the court, the city could split the burden of restoring the property with another organization.

In June of 2023, Terry House Inc. entered into talks with the University of Arkansas Fay Jones School of Architecture and Design to form a partnership with the city to use the property for educational and cultural programming.^[35] If the heirs came to an arrangement with the university, and the city agreed to it, a court could authorize a partial sale of the Terry House to the school. Then, the city and the university could restore the property together and reopen it to the public.

However, the city might not have an incentive to agree to an arrangement with the university or another party. Carpenter’s memo makes it clear that his office supports returning the Terry House to the heirs. If the city has no fear of reversion, it could be difficult to compel it to share the property with another organization. Potentially, the heirs could sue for enough monetary damages to induce the city to consent to an arrangement. The six heirs could also petition the court to order the city to adhere to a plan for cy pres relief. Unfortunately, there is a chance that the court will allow the reversion, and the six heirs could end up with a mansion they lack the funding to restore and maintain.

Restricted gifts come with a myriad of issues for cultural institutions. Museums should be careful in agreeing to donor conditions that may be difficult to maintain over time.

Suggested Reading

• Stephanie Bayless, Obliged to help: Adolphine Fletcher Terry and the Progressive South (1^st ed.). Little Rock, AR. (September 2011).
• Tony Holt, Nonprofit opposed to Little Rock city attorney’s plan for Pike-Fletcher-Terry House, Northwest Arkansas Democrat Gazette, (Jun. 24, 2023, 3:31AM).
• Joseph Flaherty, Little Rock city attorney endorses end to Pike-Fletcher-Terry House lawsuit that would officially return mansion to heirs, Arkansas Democrat Gazette, (Jun. 15, 2023, 3:40 AM).
• Virginia D. Carpenter, Balancing Donor Intent with Museum Needs: Proposed Deaccession Planning Strategies for Art Bequeathed to Museums, 872, 101 Kentucky Law Journal Iss. 4, Article 7 (2013).

About the Author

RaeAnn Bell is a third-year law student at the University of Illinois College of Law. She is originally from Utah and has a BA in anthropology from Utah State University and an MA in art history from the University of Utah. She is interested in trusts and estates law and intellectual property law.

Sources:

1. Complaint at 32, Borné et. al. v. City of Little Rock, Arkansas et. al., No. 60CV-21-6690 (Pulaski Circuit Court, 2022). ↑
2. Id. at 28. ↑
3. Id. at 29.2. ↑
4. Id. at 32. ↑
5. Id. at 42. ↑
6. National Register of Historic Places, Inventory Nomination Form. Terry Mansion owned by City of Little Rock, 1969. Unnumbered. https://www.arkansasheritage.com/docs/default-source/national-registry/PU2829-pdf. ↑
7. Id. ↑
8. Id. ↑
9. Id. ↑
10. Id. Tom Dillard, Adolphine Fletcher Terry: A force to be reckoned with, Arkansas Democrat Gazette, (March 18, 2018, 2:28 AM).“https://www.arkansasonline.com/news/2018/mar/18/adolphine-fletcher-terry-force-be-reckoned// ↑
11. National Register of Historic Places, Inventory Nomination Form. Terry Mansion owned by City of Little Rock, 1969. Unnumbered. ↑
12. Complaint at 42 and 43, Borné et. al. v. City of Little Rock, Arkansas et. al., (Pulaski Circuit Court, 2022). ↑
13. Id. at 43. ↑
14. Id. at 42. ↑
15. Id. at 43. ↑
16. Id. at 42. ↑
17. Id. at 53. ↑
18. Id. at 44 and 45. ↑
19. Id. at 45. ↑
20. Joseph Flaherty, Little Rock city attorney endorses end to Pike-Fletcher-Terry House lawsuit that would officially return mansion to heirs, Arkansas Democrat Gazette, (Jun. 15, 2023, 3:40 AM), https://www.arkansasonline.com/news/2023/jun/15/little-rock-city-attorney-endorses-end-to-pike/. ↑
21. Id. ↑
22. Tony Holt, Nonprofit opposed to Little Rock city attorney’s plan for Pike-Fletcher-Terry House, Northwest Arkansas Democrat Gazette, (Jun. 24, 2023, 3:31AM), https://www.nwaonline.com/news/2023/jun/24/nonprofit-opposed-to-little-rock-city-attorneys/. ↑
23. Id. ↑
24. Friends of the Terry Mansion, News Release: Terry-Drennan Heirs form Nonprofit Corporation to Benefit Pike-Fletcher-Terry House, February 11, 2022. Posted on Facebook. https://www.facebook.com/TerryMansionLR/. ↑
25. Cy pres is a legal doctrine the means “as near as possible.” Wex Definitions Team, Cy Pres: Charitable Trusts, Legal Information Institute, Cornell, https://www.law.cornell.ed2u/wex/cy_pres_charitable_trusts. ↑
26. Stephen Michael Sheppard, Bouvier Law Dictionary Cy Pres. The Wolters Kluwer Bouvier Law Dictionary Desk Edition (2012). ↑
27. The Alfred Stieglitz Collection. Crystal Bridges of American Art (2022). https://stieglitzcollection.crystalbridges.org/. ↑
28. Virginia D. Carpenter, Balancing Donor Intent with Museum Needs: Proposed Deaccession Planning Strategies for Art Bequeathed to Museums, 872, 101 Kentucky Law Journal Iss. 4, Article 7 (2013). ↑
29. Id. ↑
30. In re Fisk Univ., 392 S.W.3d 582, 584 (Tenn. Ct. App. 2011). ↑
31. Id. ↑
32. Id. at 592. ↑
33. Id. ↑
34. Id. at 593. ↑
35. Tony Holt, Nonprofit opposed to Little Rock city attorney’s plan for Pike-Fletcher-Terry House, Northwest Arkansas Democrat Gazette, (Jun. 24, 2023, 3:31AM). ↑