to not inquire into or examine the personal effects, documents, checks, and letters of the decedent, such counsel having been in the case from the beginning; he, the one, who raised all of the legal points for years, both before and after the tolling of the limitation of actions statute. It has not been shown to this committee, nor has it been suggested, that either Mr. McCrossin or his able associate, Mr. Edward A. Alexander, has any different opinion about the matter now that the claimant exhibits some irrelevant checks, receipts, and the like in photostatic form. Moreover, it is equally unthinkable that many previous able congressional committees, all of which denied similar applications for legislative relief, would or could commit the same error, all of which refusals had the support and concurrence of such distinguished gentlemen as Hon. Charles Evans Hughes, lately Chief Justice of the United States Supreme Court, Hon. R. Walton Moore, lately Solicitor of the State Department, counselors of the Department of Justice, and others.

Finally, this writer is not impressed by remarks of other counsel to the effect that if their ill-conceived claim be not granted congressional committees will be plagued for years to come. Such comment suggests intimidation, it is poor argument, and it invites this committee to surrender to the coercion of Mrs. Gellatly, who on October 24, 1930, it is recalled, suggested to the Secretary that there would be penalties of political influence and adverse publicity if he did not capitulate. This, he would not do and we shall not at this late date reverse our position. That the good name and public-spirited action of John Gellatly may not be undone, and that a great public may enjoy and benefit through his beneficence and noble works, we of the Smithsonian Institution are irrevocably committed to the final and complete denial and defeat of Mrs. Gellatly's claims. We urge this committee to recommend against and reject the bills. Respectfully submitted.

PAUL J. SEDGWICK, Counsel for the Smithsonian Institution.

MEMORANDUM BRIEF IN RE ESTATE OF JOHN GELLATLY, DECEASED (H. R. 2015 AND H. RES. 139 78TH CONG., 1ST SESS.)

John Gellatly was the owner of a large and valuable collection of art, which was housed in a private gallery in the Heckscher Building in New York City. On March 27, 1929, Gellatly addressed a communication to Gari Melchers, the chairman of the National Gallery of Arts Commission. In this communication, which the representatives of the Smithsonian Institution contend was an offer of gift, the following language appears:

"That is, if the trustees of the Smithsonian consider my collection worthy to be placed in its present complete form as shown in the galleries of the Heckscher Building, in a section of the National Gallery and accept the gift under that condition, the collection to always remain in the National Gallery complete as collected by me without alteration or addition."

It is

On June 13, 1929, representatives of the Smithsonian Institution caused a document to be prepared, which document purports to be a bill of sale of some of the art objects owned by Mr. Gellatly. This document, executed by John Gellatly, was signed by C. G. Abbot as Secretary for the Smithsonian Institution. (A copy of this document has already been furnished to the committee by Dr. Abbot, as has a copy of Gellatly's letter of March 27, 1929, referred to above.) It is out understanding that it is the position of the Smithsonian Institution, expressed through Dr. Abbot at the hearing before the committee last Wednesday, that Gellatly's letter of March 27, 1929, constituted an offer to make a gift and that the "bill of sale," dated June 13, 1929, constituted the acceptance of that offer. submitted that such a contention presents a legal anomaly in that the substance of Dr. Abbot's position is that Gellatly offered to make a gift of certain property to the Government and that the "offer of gift" was accepted by the Government "purchasing" the subject of the offer. However that may be, you will note that the "bill of sale" of June 13, 1929, refers to the letter of March 27, 1929, and that the "bill of sale" says that "transfer and sale" are made by Gellatly to the Smithsonian Institution "upon the terms and conditions set forth" in the letter of March 27, 1929. Incidentally, the letter of March 30, 1929, which is referred to in the bill of sale, has to do only with questions of expense and therefore has no pertinency here.

It is clear from the language of the second paragraph of the letter of March 27, 1929, which we have quoted above, that the subject matter was Mr. Gellatly's

collection "in its present complete form as shown in the gallery in the Heckscher Building, * *

Aside from the question of the validity of any part of the alleged gift, or of the validity or effect of the "bill of sale," it is manifest that the subject matter was only so much property as was owned by Gellatly and as was in the Heckscher Building on March 27, 1929. At this time no one representing the United States Government knew what was in the Hechscher Building, nor did anyone representing the Government know how many, if any, of the art objects which were in the Heckscher Building were actually owned by Mr. Gellatly on March 27, 1929. It is clear that there was no inventory available at that time and it is clear that it was not until October 26, 1929, that Mr. Gellatly brought a partial inventory to Dr. Abbot. It does not follow that every item appearing in that list was either in the Heckscher Building on March 27, 1929, or that every item appearing in this list was owned by Gellatly on March 27, 1929. It undoubtedly would be the position of Dr. Abbot that Mr. Gellatly made an additional gift of the items appearing on the October 1929 inventory if some of these were either not in the Heckscher Building on March 27, 1929, or if they were there, they were not then owned by Gellatly, but whatever items were not in the Heckscher Building on March 27, 1929, or whatever items were there but were not owned by Gellatly were never accepted by the Board of Regents of the Smithsonian but Ďr. Abbot, who had and has no authority to accept gifts on behalf of the Government, undertook to accept such on behalf of the Government. On August 13, 1930, Mr. Gellatly handed Dr. Abbot a list of additional art objects and on August 14, 1930, Dr. Abbot addressed a letter to Mr. Gellatly as follows:

"Confirming our conversation of yesterday, it is my privilege as secretary of the Smithsonian to acknowledge with profound appreciation your generosity in adding to the Gellatly collection the objects of art enumerated in the list which you handed me on August 13, 1930, a copy of which is attached. These objects of art you now present to the Smithsonian Institution, supplementary to those presented in the year 1929, for eventual exhibition in the National Gallery of Art, and I have pleasure in accepting them on the same terms as the former ones."

On August 26, 1930, Dr. Abbot addressed himself to Mr. Gellatly as follows: "Mr. Seymour informs me that you have presented to the Gellatly collection one Chinese phoenix, early Tan'g, made of gold, silver, and bronze, set with pearls, glass, mother of pearl, and other stones, and also one jade ring considered by Mr. Yau to be the most beautiful and perfect piece of jade known in America. In accepting these objects for the Gellatly collection on behalf of the Smithsonian Institution, permit me to renew my expressions of appreciation of your great generosity, and to hope that the sentiments inspired by your great collection in those who visit and study it will be an ample reward to you."

On May 13, 1931, Dr. Abbot addressed himself to Mr. Gellatly as follows: "Mr. Seymour has informed me under date of May 11, 1931, that you have added and given the following works of art to the Gellatly collection:

"Pictures: Supremacy-an oil painting, 11 by 17, by F. S. Church; Lady and Tiger-a water color, 15 by 19, by F. S. Church. The painting entitled 'Supremacy' has been especially framed and has a mat of old Spanish leather.

"An ancient glass bottle, from the Guelph treasure. A small glass bottle, oval form (Pilgrim type), thick greenish glass with some floss and air bubbles; Syrian, eleventh or twelfth century; from the Guelph treasure; cataloged in the special and limited edition of the book The Guelph Treasure No. 36, pages 161-248, plate 72.

"I hereby accept these objects on behalf of the Smithsonian Institution for the Gellatly collection on the same terms as the original gift of June 13, 1929, and the supplementary gifts of August 13 and 26, 1930.

"Permit me also to express the deep appreciation of the Institution for this further example of your generosity."

In the proceedings before the surrogate's court in and for the county of New York, in which the question of the ownership of the Gellatly collection was involved, in proceedings involving the estate of John Gellatly, this question was asked of Dr. Abbot:

"Question. Did Mr. Melchers and the Board of Regents and permanent executives of the Board of Regents pass upon any of these subsequent gifts?" To this question Dr. Abbot replied: "No."

It follows from these facts, which cannot be disputed, that regardless of the validity of the "gift" or "sale" of those objects which were in the Hechscher Building and which were owned by Gellatly on March 27, 1929, the attempts

made by Dr. Abbot to accept any later gifts were abortive. Dr. Abbot had no such authority. As a matter of fact, Dr. Abbot's position is hopelessly inconsistent if for no other reason than that the hearing before the committee last Wednesday, if we understand him correctly, Dr. Abbott said that the Smithsonian Institution "bought" the property under the bill of sale of June 13, 1929, whereas Dr. Abbot's letters referred to and quoted from above make it clear that he thought he was accepting "additional gifts," "upon the same terms as the former

ones."

It should also be pointed out that while the "bill of sale" of June 13, 1929, refers to the "inventory attached hereto and made a part hereof" no such inventory was attached nor, for that matter, in existence. It should also be called

to the committee's attention that in the second paragraph of the "bill of sale" the following language appears:

"That John Gellatly * * * has bargained and sold and by these presents does grant and convey unto the said party of the second part (the Smithsonian Institution) * * * the art objects belonging to said party of the first part and now in the Heckscher Building, [Italics supplied.]

*

It is submitted that no language could be clearer than this and that even if the main "gift" or "sale" is valid, surely neither was intended to cover (1) any property not in the Heckscher Building, and (2) any property in the Heckscher Building but not owned by Gellatly on March 27, 1929.

If there could be the slightest doubt upon this question at this point, the following very significant letter should surely resolve that doubt in favor of the estate of John Gellatly. On May 14, 1930, Dr. Abbot addressed a letter to Ralph Seymour, whom Dr. Abbot described as "curator, John Gellatly art collection." This letter reads in part as follows:

"You will recall that Mr. Gellatly has furnished the Institution with a list, folios 1-30, marked 'Inventory, John Gellatly Collection, 1929.' All the objects therein named have become part of the national collections under the Smithsonian Institution by virtue of the deed of gift. These objects are to be distinguished from any others which Mr. Gellatly may have retained outside of the inventory or which he may have procured since the collection was presented to the Smithsonian Institution, objects not included in the inventory being Mr. Gellatly's private property."

Even Dr. Abbot understood that nothing not included in the inventory of October 26, 1929, was the subject of either a "gift" or "sale" but that, on the contrary, such articles Dr. Abbot described as "being Mr. Gellatly's private property.'

On the occasion of the hearing before the committee last Wednesday, counsel exhibited several portfolios containing photostatic copies of a large number of Mr. Gellatly's checks made to art dealers and containing a large number of receipted bills from art dealers, which bills fully describe the articles covered by the payment. These checks and receipted bills show that even assuming the validity of the original "gift" or "sale" on June 13, 1929, hundreds of articles which cost several hundreds of thousands of dollars were either not intended to be included in the original gift (although they may have been in the Heckscher Building on that date), or were purchased by Gellatly after the alleged gift on June 13, 1929. Even assuming the validity of the original "gift," Dr Abbot's attempts to accept additional "gifts" upon his own authority were not effective to accomplish this purpose. No objects which were not in the Heckscher Building on June 13, 1929, and no objects which, although in the Heckscher Building on that date, did not belong to Mr. Gellatly have become the property of the Federal Government.

Dr. Abbot seems to take the position that the United States Government has acquired valid title to some or all of the property belonging to the estate of John Gellatly because, according to Dr. Abbot, Mrs. Gellatly is not a person of honest demeanor. Dr. Abbot completely overlooks the fact that this is not a question which has any bearing upon the simple question of the ownership of the property, even if it were true, which it certainly is not. Moreover, Mrs. Gellatly is not seeking relief through congressional action in her individual capacity as the widow of John Gellatly which, in fact, she is, but she is seeking relief as the administratrix of the estate of her decedent, John Gellatly, having been duly appointed to that office by the surrogate's court in and for New York County. In her capacity as administratrix it is her clear duty, under the laws of the State of New York, to prosecute all valid claims of the estate for the benefit of the heirs of John Gellatly, whoever they may be, or, as pointed out by the chairman of the subcommittee at the hearing last Wednesday, for the State of New York in the event that it should turn out that Gellatly died without legal heirs.

Dr. Abbot takes the position that the administratrix of the estate is not entitled to a day in court to try the issues in this case because, according to Dr. Abbot, many distinguished officials of the United States Government have passed upon the questions here presented and they have decided, according to Dr. Abbot, that the estate of John Gellatly has no valid claim against the United States. Regardless of what the opinion of these gentlemen may have been, it is submitted that the case which counsel are presenting to the committee has never been presented to anyone representing the Smithsonian Institution-not even to Dr. Abbot. In this connection we wish to recall to your mind that we formally requested Dr. Abbot to call a meeting of the Board of Regents of the Smithsonian Institution and to give us an opportunity to appear before that Board and to present the new evidence which has come into our possession since this case was last presented to either the Board of Regents or to either House of the Congress. We submit that the documentary proof which we now have more than amply supports our petition to the House of Representatives to certify this case, under a House resolution, to the United States Court of Claims for findings of fact and report back to the House.

The resolution which we seek to have the House pass is neither intended to nor does it deprive the United States of any defense whatsoever which it may have. On the contrary, if the resolution passes, the estate and the Government, for the first time, will have an opportunity to present the facts to an impartial tribunal so that after the Court of Claims has reported to the House of Representatives, the Congress can then take such action as it sees fit upon the basis of facts as found by the court and upon the basis of the law as expounded by the court for the benefit of the Congress.

To recapitulate, our position is as follows:

1. There is serious question of the validity of the so-called offer of gift of March 27, 1929, for the reason, among others, that it is uncertain what was intended to be given to the Smithsonian Institution.

2. We say that the so-called bill of sale of June 13, 1929, may well be invalid either as a bill of sale or as an inartistic attempt to memorialize the acceptance of the offer of March 27, 1929, because of its uncertainty as to what property was intended to be covered thereby.

3. We say that regardless of the question of the validity of the original "gift" the attempts of Dr. Abbot, acting in his individual capacity, to accept later "gifts" were abortive.

4. We say that regardless of any of these questions it is clear from the record and from the documents referred to and quoted from above, that Dr. Abbot understood that Mr. Gellatly, on March 27, 1929, intended to give to the Nation and so offered to the Nation only such articles as were in the Hechscher Building on that date and as were then his property.

5. We say that our new evidence in the form of canceled checks and receipted bills establishes that a large number of articles of great value, which now repose in the Smithsonian Institution as part of the Gellatly collection, were not owned by Mr. Gellatly on March 27, 1929, or on June 13, 1929, or on October 26, 1929, and so these articles could not have been the subject of the "gift" or "sale.'

6. We say that the questions which we present are technical questions, they are questions of title which cannot be answered by laymen nor by the very officials of the Smithsonian Institution who are responsible for handling this matter in the manner and in the form in which it was handled, even assuming their complete impartiality.

7. We say that the Congress has set up, under statutes, orderly procedure for the determination of questions of this kind by the United States Court of Claims, which court, in cases referred to it by either House of Congress, under appropriate resolutions, is the designated agent of the Congress, and that the laws in this respect were specifically designed to afford a claimant against the United States an impartial forum to which such claimant might present his case. It is submitted that the Court of Claims is well equipped to, and that it can surely be relied upon to, hear all of the testimony adduced by both sides to the controversy; to receive all proper evidence introduced by both sides to the controversy; to make findings of fact based upon such evidence and to report these findings to the House, together with an exposition of the law of the case for the guidance of the Congress. Respectfully submitted.

ELWOOD H. SEAL,

STANLEY SUYDAM,

RUSSELL HARDY,

Attorneys for the Estate of John Gellatly.

FEBRUARY 10, 1944.

SEPTEMBER 2, 1930.

MY DEAREST CHARLAYNE: I trust that this letter from me will bring happiness to you, as it certainly will to me if its promise is fulfilled.

When we talked of marriage recently you expressed your willingness to accept me as your husband, and I now ask you to kindly accept me as your husband and so make me extremely happy.

In order to have sufficient income to maintain a position in the world worthy of my wonderful wife to be I have increased my income.

What I would greatly like would be to have our wedding at the little church you know so well, and have my very dear friend Ralph Seymour as my best man.

Affectionately yours,