A study in anguish preserved in Nazi-looted art

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In Dusseldorf in the 1920s, the David and Stern families were professional contacts and friends. Julius Stern was a clothing manufacturer turned art dealer, and Dagobert David, a successful banker, bought dozens of paintings from the Galerie Stern to decorate the new house he shared with his wife, Martha, and their three children. Julius died in 1934 and his son Max took over the business, but by this time anti-Semitism in Germany was threatening both Jewish families. David had been fired from the bank in 1933 while the young Stern fought off the Nazis’ repeated attempts to close his gallery.

Arrested on trumped-up currency charges, David died in Nazi custody in 1937 and his widow fled to Belgium with some of their art while Stern tried to relocate his business to London. When the war broke out, Martha David was forced into hiding in occupied Belgium, where she sold off paintings to survive. Meanwhile, Stern was interned by the British as an enemy alien on the Isle of Man, where Martha’s two sons, who had attended British boarding schools, were also briefly imprisoned.

Today, 80 years after these traumatic events, the two family stories are entangled once again as David and Stern heirs find themselves enmeshed in a puzzling disagreement over one painting that used to hang at the Art Gallery of Ontario in Toronto: Still Life with Flowers by Jan van Kessel. The case of the AGO van Kessel revives difficult history and emotional memories, but it also exposes Canada’s inexperience in dealing with the restitution of Nazi-looted art at a time when society demands complete transparency and swift action from museums on everything from the underrepresentation of female artists to the return of Indigenous artifacts.

The Flemish flower painting in question was donated to the AGO in 1995, by Henry and Susan Davis of Ottawa, who had purchased the work in the 1950s when it was still attributed to van Kessel’s more famous grandfather, Jan Brueghel the Elder. The AGO has exhibited it only three times since then, but last year the David family in Britain presented the gallery with what chief curator Julian Cox calls “a compelling claim” that the work was one of 17 paintings that Martha was forced to sell for a pittance in Brussels. In November, the AGO returned the painting to the David heirs in record time, reuniting it with a 95-year-old woman, the youngest of Dagobert and Martha’s children. (The David descendants wish to remain anonymous and The Globe and Mail is not identifying by name any living heirs.) The last living member of the David’s war-time generation had said she recalls the artwork hanging in the family home.

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But is Still Life with Flowers also possibly one of the paintings that Max Stern was forced to dump as the Nazi noose tightened in Dusseldorf? That question is key to the case of the van Kessel because if Stern sold the painting to the Davids after the Nazis came to power in 1933, his estate would have a prior claim for restitution. Vital gaps in information about when and where the Davids bought the painting have made the AGO’s rapid restitution increasingly controversial.

“I find it very odd,” says Anke Kausch, a Canadian restitution researcher uninvolved with this case who described the limited information about the painting’s provenance (or collecting history) on the AGO website as lacking transparency and not fleshed out. “It’s public property that was given back and we don’t know why.” She trusts that the AGO did its homework but wonders why she can’t see the proof.

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That proof was presented to the AGO by the David family through the non-profit Commission for Looted Art in Europe (CLAE), which has made several successful claims for some of the paintings Martha sold in Brussels. Stern’s interest is represented by the Max Stern Art Restitution Project at Concordia University: Stern became a prominent Montreal art dealer after the war and when he died childless in 1987 he left his estate to the Hebrew University of Jerusalem, McGill and Concordia, where the Stern Project works to recover both the family art collection he had to abandon in Germany and the inventory his gallery was forced to sell before he fled in 1937.

Both the Stern Project, and now the CLAE, say they have no documentation of the Davids’ purchase of the van Kessel. Buried beneath that missing paperwork are two very different interpretations of what was going in the Dusseldorf art market in the 1920s and 1930s.

The family story among Dagobert David’s descendants is that their grandfather was an avid art collector who was buying Old Masters in the 1920s. “Dagobert’s passion was collecting art, in particular the Dutch ‘Little Masters’ of the 17th and 18th centuries,” says a brief family history published in 2012. At that time, family members belatedly identified themselves as the beneficiaries of a compensation payment made by the British government in 2001 when it acknowledged that View of Hampton Court, a 17th-century Dutch painting by Jan Griffier at the Tate Gallery in London, had been Martha’s property. The brief monograph goes on to describe that painting hanging with 14 other Old Masters in the Davids’ Dusseldorf home alongside works by contemporary German artists.

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The British government report on that painting said it was purchased from the Galerie Stern in Dusseldorf “in about 1932” – around the same time the Nazis came to power in 1933. When the AGO returned Still Life with Flowers to the Davids, the CLAE initially sent the Stern Project an e-mail announcing it as another restitution of a Stern painting. Meanwhile, the AGO posted a provenance on its website, citing the year of purchase as 1937. That information, which would give the Stern Project a strong claim to the work, was subsequently removed but neither the AGO nor the CLAE have explained why it initially appeared there, other than to say it was what CLAE co-chair Anne Webber called “simple human error.”

“When the Commission took up the representation of the David family, it learned that Mr. David had built up a collection of paintings from the early 1920s, the early years of the David marriage, which were displayed in the family home. In 2002 their son recorded that they had been acquired by 1934, many he thought from Galerie Stern. In light of his father’s persecution and death, none could have been acquired in 1937,” Webber wrote in a statement provided to The Globe.

Not necessarily, says Stern Project researcher Willi Korte. He describes David’s Old Master collecting in the 1930s as something very different from the pleasant pastime he had enjoyed in the 1920s when he bought popular 19th- and 20th-century German paintings of the kind that the Nazis themselves would cherish.

“David, just like Stern himself, shifted his inventory from German art to Dutch Old Masters and ... this had nothing to do with a change in taste, but everything to do with acquiring paintings that could be taken into exile and have value there,” Korte, a restitution expert based in Maryland, wrote in an e-mail. “I also have little doubt that Max Stern was actively involved in making that shift in David’s collection.”

“Paintings were currency,” added Philip Dombowsky, the archivist who oversees the Max Stern papers at the National Gallery of Canada. “They aren’t buying it to hang on the living room wall, they are buying it to sell,” he said, speaking of Jewish collectors in those treacherous years, not the David case specifically.

Before 1933, the Galerie Stern kept client cards, recording what art had been shown to clients and what they purchased. That record shows that, between 1919 and 1928, Dagobert David bought 48 pictures, and then traded in 11: All were works by German artists. He stopped buying art in 1928 when, Korte suggests, he had finished decorating the house he had bought in 1920. Cards for Jewish clients become scarcer after 1933, probably because they were now wary of documenting sales, but they do show David looking at Dutch and Flemish art for the first time in 1935. That year he bought another work by van Kessel and paid for it partly by returning two German paintings to Stern.

Nazi Germany had strict currency controls so that Jews fleeing the regime could not get their money out of the country while increasingly onerous export duties were charged on personal property acquired after 1933. Korte explains that the refugees could pass off valuable paintings as part of the family furnishings, citing the example of the Friede family, who left Germany in 1938 with a household inventory that included several paintings, at least one of which they had bought from Stern only two years before.

That painting is the Brueghel Wooded Landscape with Travellers recently acquired by the National Gallery of Art in Washington after the Stern Project settled its claim to the work. When competing claims emerge in such cases they are resolved on the principle that the first victim has the strongest right to restitution, a rule established by the Allies when they occupied Germany in 1945 and then folded into Western German law.

The quest to restore art directly looted by the Nazis or sold under duress only began in earnest in the 1990s after the political opening up of Eastern Europe, by which time many European laws in this area had expired. Restitution continued under the Washington Principles, a 1998 agreement that provides only vague guidelines for “just and fair” solutions. Like most signatories, Canada has no specific law covering Holocaust-era restitution and claims are usually settled by negotiation rather than lawsuits.

The restitution to the primary claimant may not always seem fair: Korte points out that when Jew sold to Jew in the 1930s it was often the second person who wound up under the greatest duress. Nonetheless, restitution generally operates under the principle that after 1933 the first sale of a Jewish property was the one distorted by the Nazis. For example, the other van Kessel in the David collection, Still Life with Fish, was purchased from Stern in 1935 and now hangs in the Stadel Museum in Frankfurt: The David family has not made any claim against it, while the Stern Project is considering one. (In an e-mail, Webber said it was not one of the paintings sold in Belgium and thus not being sought.)

As these examples suggest, resolving claims is complicated and takes a great deal of careful research. In another of the very few Canadian cases, it took Kausch two years of research to satisfy the Montreal Museum of Fine Arts that it should return The Duet, a 1624 painting by Gerrit van Honthorst, to the heirs of Hamburg collector Bruno Spiro in 2013.

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That’s why the art community, while praising the AGO for moving quickly, was surprised the gallery managed to return Still Life with Flowers in a mere six months. Cox at the AGO explained that the gallery was in a hurry because of the daughter’s advanced age: “We were motivated more than we might typically be,” he said. “It’s tricky to get all the dots connected. There’s the technical element and the human.”

Also, the restitution has occurred in an era where museums are expected to respond promptly to community demands, while the curatorial taboo against ever removing art from the collection – deaccessioning – is slackening as cash-poor museums need to cull a previous generation’s art to make room for works by underrepresented groups. More prosaically, the van Kessel, which might be worth a few hundred thousand dollars, had not been put on display in a decade.

Certainly, the AGO, which had never restituted an art work before, took the more expeditious routes through the paperwork, using routine processes that didn’t flag the painting as special. It let its collections committee vote on the deaccessioning rather than its full board and shipped the painting out under a standing export permit rather than applying for a special one that would have required a separate inspection.

It also relied entirely on in-house expertise to vet the claim; most puzzling of all, the AGO didn’t bother to contact the Stern Project – the best-known restitution effort in Canada.

After Max Stern was interned by the British as an enemy alien, he was deported to Canada, first to a camp in New Brunswick and then to Farnham, Que. He was released in 1941 and joined Montreal’s Dominion Gallery, becoming a partner in the business in 1944 and quickly establishing himself as the city’s leading commercial dealer, encouraging a conservative market to start buying art by living Canadians.

During his lifetime he went looking for his lost property with little success, claiming only six pieces. It was after his death in 1987, when his institutional heirs uncovered that quiet and largely fruitless quest, that they launched the restitution project that has successfully claimed 22 more works.

The Stern Project also acts as a living tribute to a central figure in Canadian art history: Stern gave Paul-Émile Borduas his first commercial show and Emily Carr her only one, in 1944, the year before her death. Yet no one at the AGO thought to inform colleagues in Montreal that the heirs of a Stern client were interested in an AGO painting. In interviews, Cox said there was no reason to consider a Stern connection because there is no documentation to suggest one, but expressed frustration that the CLAE was not sharing publicly details of its claim. “This had been a significant learning process for us and we have put in place steps to improve our process,” he said, adding, “We feel very strongly we did the right thing.”

Currently, the Stern Project is not laying claim to Still Life with Flowers. It just wants to know what documentation was provided to the AGO that convinced the gallery the painting belonged to the Davids and, if the Stern 1937 provenance originally posted on the AGO website was incorrect, how that mistake came to be made.

The only physical evidence Webber cites in her statement to The Globe is a series of 15 photographs of paintings, including the van Kessel, that Dagobert David apparently took for insurance purposes sometime in the 1930s and which were also used in the Griffier claim at the Tate. But both Korte and Kausch point out that owning a photograph is not necessarily proof that you owned the painting. Korte added that the CLAE must have also shown the AGO some documentary evidence since the burden of proof of ownership is on the claimant.

Several experts consulted by The Globe say the questions surrounding the case could make the van Kessel difficult to sell.

“That’s not ideal,” said U.S. art lawyer Nicholas O’Donnell. “The goal with restitution is to clear the title.”

And those questions about title could possibly spread to other David paintings: For example, Korte is uncomfortable with the phrase “in about 1932” to describe the purchase of the Griffier for which the family was paid compensation.

“Is the record unclear about this purchase or is this someone’s recollection?” Korte asked, adding that if the painting was purchased before the Nazis came to power there would be no reason not to have the date marked on a client card.

In that case, the Tate kept its painting. The AGO, meanwhile, has lost a painting that was only languishing in storage. Yet the painful part at the Canadian end of this story is that, if Still Life with Flowers were a Stern painting, the gallery might instead have held onto an artwork that it could have newly displayed alongside a dramatic history: The Stern Project sometimes lends back reclaimed art to museums that have aided in restitution.

“How ironic,” said Stern Project director Clarence Epstein. “We know about paintings sitting in Taiwan, paintings across Europe. We have leads in South America, and here is this painting in our own backyard.”