## Facts

- In the late 1940s and early 1950s, artist Georgia O’Keeffe transferred 101 works of art to Fisk University in Nashville, Tennessee, to encourage the study and public viewing of important modern art in the American South.
- The transfer included four works owned by O’Keeffe and ninety-seven works associated with the Alfred Stieglitz collection.
- In connection with the gift, O’Keeffe communicated expectations that the works would be properly housed, cared for, and exhibited together at Fisk, and that the works would not be sold.
- In letters, O’Keeffe stated that if Fisk could not meet the stated conditions, the works should be returned; however, the courts treated these statements as requests rather than binding divesting conditions.
- Decades later, Fisk asserted it lacked the financial resources to maintain, insure, and exhibit the collection in the manner O’Keeffe contemplated.
- Fisk petitioned the Tennessee chancery court for permission to alter the restrictions, including permission to sell two pieces from the collection to fund continued care of the remaining works.
- The Georgia O’Keeffe Foundation (Museum) intervened, arguing that the restrictions were enforceable as written and that any noncompliance required the collection’s return to the Museum.
- The Tennessee Attorney General participated in the case in a parens patriae capacity to represent the public interest in charitable gifts.
- The trial court concluded that O’Keeffe had a specific charitable intent tied to Fisk and therefore ruled that cy pres relief was not available to change the gift terms; Fisk appealed.

## Issues

1. Whether O’Keeffe’s correspondence created a legally enforceable divesting condition requiring return of the collection if Fisk could not meet the stated restrictions.
2. Whether O’Keeffe’s gift reflected a specific charitable intent (defeating cy pres) or a general charitable intent (permitting cy pres modification when compliance becomes impracticable).
3. Whether, given Fisk’s changed circumstances, a court of equity may authorize modification of the gift restrictions to carry out the charitable purpose.

## Decision

- The Court of Appeals held that O’Keeffe’s statements about returning the collection were not drafted as binding conditions that automatically divested Fisk of ownership upon noncompliance.
- The court disagreed with the trial court’s conclusion that O’Keeffe’s charitable intent was so specific to Fisk that cy pres could never apply.
- The court concluded that O’Keeffe manifested a general charitable intent to make significant art available for education and public benefit in the South, and that Fisk was the chosen vehicle for that charitable aim rather than the sole end in itself.
- Because the gift involved a charitable purpose and changed circumstances were alleged to make literal compliance unworkable, the court ruled that cy pres could be available to modify restrictions in a way that remains consistent with the charitable objective.
- The court reversed the trial court’s denial of cy pres relief and remanded for further proceedings to determine whether the required showing for cy pres (including impracticability and consistency with the charitable purpose) was met and, if so, what modification was appropriate.

## Legal Principles

- A charitable gift with restrictions is enforced primarily to carry out the donor’s charitable purpose, using equitable principles applied to charitable trusts and trust-like gifts.
- Donor communications that are precatory (requests or expressions of hope) do not create a divesting condition unless the donor clearly used mandatory language creating a condition subsequent and a right of reversion.
- Cy pres may allow judicial modification of restrictions on a charitable gift when compliance becomes unlawful, impossible, or impracticable, but only if the donor had a general charitable intent.
- If the donor’s intent is specific—so that the gift is tied exclusively to a particular institution or precise plan—cy pres is not used to redirect the gift to a different means or recipient absent a legally effective provision authorizing that result.
- When cy pres applies, the court’s task is to select a modification that stays as close as reasonably possible to the donor’s charitable purpose rather than rewriting the gift for the donee’s convenience.
- The state attorney general has a central role in charitable-gift matters to represent the public interest in charitable assets and their proper use.

## Conclusion

The Tennessee Court of Appeals held that O’Keeffe’s art gift to Fisk did not include a legally binding reversion provision, and that her overall aim reflected a general charitable intent, so cy pres relief could be considered to modify the no-sale and related restrictions if Fisk proves that present conditions make literal compliance impracticable and that any change would still carry out the gift’s charitable purpose.


Georgia O'Keefe Foundation (Museum) v. Fisk University, 312 S.W.3d 1 (2009)