The Telegraph 13 June 2004
Godfrey Barker and Gerhard Charles Rump
A descendant of the original owners of the $104 million Picasso that became the world's most expensive painting last month is consulting lawyers to establish how his family lost ownership of the masterpiece.
Prof Julius H Schoeps, a historian at the University of Potsdam, claims that the Picasso, Boy with a Pipe, was sold in 1949 despite his great-uncle's will stating that he wished the painting to remain in the Berlin family.
He is arguing that the provisions of his great-uncle's will, which was made in 1935 with the aim of keeping the painting, and others, out of Nazi hands, were morally breached by the subsequent sale of the Picasso, which he describes as "a betrayal" of his family.
Prof Schoeps has now called in lawyers to examine the circumstances surrounding the sale. "I have known about the will only since 1993 and I have known about the Picasso only since Sotheby's contacted me earlier this year to help with its cataloguing," said Prof Schoeps.
"It has seemed to us too late to act. But my family has, in a certain way, been betrayed." he said. "What happened in 1949 may have been correct in law, but in morals it was highly problematic."
Prof Schoeps disclosed that the will made in 1935 by one of the greatest pre-war Jewish art collectors, Paul von Mendelssohn-Bartholdy, intended that all his property - including the Picasso and nine paintings by Vincent van Gogh - should descend in the family of his sisters after the death of his wife.
Mr Mendelssohn-Bartholdy, who was childless, inserted a device in the will that "pre-bequeathed" the art to his Christian wife to save it from being seized by the Nazis, but this backfired when she defied his wishes and sold off his most valuable pictures in the 1940s.
Asked if he would seek to use the law to retrieve the Picasso, Prof Schoeps replied: "That's not my wish. I cannot say what to do. Others know better than me."
Sotheby's, asked if it thought that a case to challenge last month's sale might succeed against the Picasso's anonymous new owner replied: "Absolutely not. We are very clear from conversations before and after the sale that there is no legal issue here and that he is not planning to pursue any legal case against the sale of the Picasso."
The auction house catalogue in New York precisely gave the provenance of the Boy with a Pipe, which was painted in 1905 on the cusp of Picasso's Blue and Rose periods.
It said nothing, however, of Mr Mendelssohn-Bartholdy's manoeuvre to save his art from the Nazis - and of the other sales by his widow from his magnificent collection.
These included van Gogh's Sunflowers, which became an earlier holder of the title of world's most expensive picture when it was sold for £24.75 million at Christie's in March 1987.
Among Mr Mendelssohn-Bartholdy's collection were three other paintings by van Gogh, worth on the present market between £28 million and £45 million - including one of his six self-portraits, a landscape in Provence and Mme Roulin and Her Child, the celebrated painting of the postman's wife at Arles, which is now in the Metropolitan Museum of Art, New York.
Mr Mendelssohn-Bartholdy, a Berlin banker and descendant of the composer, Felix Mendelssohn, was a Jew with an Aryan wife, Elsa. When, in 1935, he realised that the Nazis intended to confiscate all Jewish property, he made a decision to pass his art before death to his wife.
A legal document rarely seen before in German law made his wife his "befreite vorerbin" or first successor, but expressly indicated that his four sisters were to be the "nacherbin", or later successors, after his wife's death.
The device worked. His wife pre-inherited the art in the Mendelssohn-Bartholdy palace in Berlin. Her husband died months after making his will, and she remarried in 1940, but she chose not to follow his intentions.
She sold the Picasso in 1949 to Walter Feilchenfeldt, a Zurich dealer. She had previously sold the van Goghs to several different buyers.
Mr Feilchenfeldt sold on the Picasso for £10,000 in 1950 to the American diplomat John Hay Whitney. The Whitney-endowed Greentree Foundation was the seller at Sotheby's a month ago.
The Mendelssohn-Bartholdy sisters, who went into exile in London in 1938, were powerless to act - and, says Prof Schoeps, "probably ignorant" of what was going on.
Marie von Mendelssohn-Bartholdy, the eldest, was aware of Nazi ransacking of family possessions stored in a Berlin warehouse and a forced auction that followed, but she was helpless because the Mendelssohn Bank was "Aryanized" and transferred to an "Aryan" German bank.
Schloss Boernicke, the family's castle outside Berlin, was also confiscated by the Nazis and retained by the Soviet authorities in East Germany in the 1945-48 land reform. Prof Schoeps tried and failed to win back the castle in a court action for restitution in the 1990s.
He said: "My family has, in a certain way, been betrayed by Countess Kesselstatt [Elsa]. Legally she was free to act, but what she did was hugely doubtful from a moral point of view."
Asked why he had not acted on previous sales of the family's former paintings, Prof Schoeps, the senior descendant of Paul von Mendelssohn-Bartholdy, replied: "It was not until 1993 when I became aware of the contents of the will - that the pictures, after Elsa's death, were to revert to Paul's family.
"I have my doubts that Paul's four sisters, including my grandmother, knew of the provisions of the will. They never mentioned it, and they were out of touch with Elsa, who outlived them all and died in Ascona in 1986. Why she sold, we do not know. We had no files on the family art collection; many papers were destroyed by the Nazis."
Boy with A Pipe, painted when Picasso was 24, broke the world record for the price paid for an individual painting when it was sold at Sotheby's in New York last month.
The previous highest sum paid for a painting was £46 million for van Gogh's The Portrait of Doctor Gachet, which was bought in 1990 by Ryoei Saito, a Japanese paper manufacturer.
Nine of the other 20 most expensive paintings in the world are also by Picasso.
When Mr Mendelssohn-Bartholdy died in 1940, however, nothing by Picasso had sold for more than £880 and similarly nothing by van Gogh had realised as much as £5,000. http://www.telegraph.co.uk/