To Index in English
Page No. 1
Presented in theReykjavik District Court,19 April 2005
S U M M O N S
Guðrún KjarvalID-No. 190117-2869 Krugervej 64, Sejs 8600 Denmark and
Mette Stiil Strandvejen 17, Tranum 9460, Brovst Denmark
Make known: That they must, on behalf of the estate at death of Jóhannes SveinssonKjarval, ID-No. 150985-9908, whose last legal domicile was at Lindargata 7,Reykjavik, initiate proceedings before the Reykjavik District Court against:The City of Reykjavik, Reg. No. 530269-7609,The Town Hall, Reykjavik.
Claims submitted to the Court:
1. Claim for recognition:The plaintiff, the estate at death of Jóhannes Sveinsson Kjarval, presents a claim for recognition by a court judgement of the title to the following objects, which were removed from the studio of the deceased at Sigtún 7,Reykjavik, in October, November and December 1968 and which are in the custody of the defendant, the City of Reykjavik according to Court ExhibitsNos. 3, 4, 5 and 6, as follows: a) Works of art by Jóhannes S. Kjarval, listed and marked K-0001-5301 in Court Exhibit No. 3.b) Works of art by other artists than Jóhannes S. Kjarval, listed and marked LR-1696-1718, in Court Exhibit No. 4.c) Various objects listed and marked K-001-347 in Court Exhibit No. 5.d) Books listed in Court Exhibit No. 6.2. Claim for restoration - per diem finesThe plaintiff, the estate of Jóhannes Sveinsson Kjarval, requests that the defendant, the City of Reykjavík, be sentenced to restore to the plaintiff the following objects, which were removed from the studio of the deceased at Sigtún 7, Reykjavik, in October, November and December 1968 and are in the custody of the defendant, the City of Reykjavik according to CourtExhibits No s. 3, 4, 5 and 6, as follows: a) Works of art by Jóhannes S. Kjarval, listed and marked K-0001-5301 in Court Exhibit No. 3.b) Works of art by other artists than Jóhannes S. Kjarval, listed and marked LR-1696-1718, in Court Exhibit No. 4.c) Various objects listed and marked K-001-347 in CourtExhibit No. 5.d) Books listed in Court Exhibit No. 6.
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It is requested that the defendant, the City of Reykjavik, to be sentenced to pay per diem fines of ISK 200.000,00 for each day, if the restoration of the listed objects to the plaintiff has not taken place within 15 days ofthe pronouncing of the sentence.
3. Claim for legal costs
The plaintiff demands payment of legal costs out of the hand of the defendant to the extent of holding the plaintiff indemnified, including 24.5% value-added tax according to an invoice for legal costs which will bepresented at the main hearing of the present case. Representation: The undersigned attorney-at-law, Supreme Court Attorney Kristinn Bjarnason, ID-No. 240364-2209, Lágmúla 7, Reykjavik, is conducting the case on behalfof the plaintiff.
Facts of the case and other circumstances:
1. Basis for the action - involvementThe facts of the case are that painter Jóhannes Sveinsson Kjarval, born 15 September 1885, died on 13 April 1972. His legal heirs were the children ofthe deceased and Tove Merild, whom he married in 1915: Aase, born in 1917, and Sveinn, born in 1919. Jóhannes S. Kjarval and Tove Merild separated in1924, when she moved with their children to Denmark. On 18 April 1972 Sveinn Kjarval and Aase Kjarval Løkken requested the authorization of the District Commissioner (then City Magistrate) of Reykjavik for a private settlement (division) of the estate at death of Jóhannes Kjarval and a license to that effect was granted the same day. At that time and during the time required for the private settlement of the estate both heirs of the deceased were living in Denmark. The private settlement of the estate was completed by a Report on Estate Settlement (Inheritance Declaration), dated 1 April 1973, signed in Brøkhus, Denmark, which was delivered to the District Commissioner (CityMagistrate) in Reykjavik and the inheritance tax was paid on 16 April 1973. According to the Report on Estate Settlement the assets coming up for division were in the total value of 1.415.000.00 old Icelandic krónur and consisted of the following:1. Monetary assets old Icel.kr. 1,390,000.002. Drawings on the walls of a room at Austurstræti 10a - " - 25,000.00 Deducted from this sum was the amount of 60,000.00 old Icel. kr. in costs, resulting in net assets of 1,355.000,00 old Icel. kr. to be divided. Aase Kjarval Løkken and Sveinn Kjarval are both deceased. (Aase Kjarval Løkken had one daughter, Mette Stiil, her sole heir.) The surviving wife of Svein Kjarval is Guðrún Kjarval, who remains in possession of the couple's undivided estate.
By a letter to the District Commissioner of Reykjavik dated 19 November 2003, the undersigned attorney-at-law requested, on behalf of Mette Stiil and Guðrún Kjarval, a reopening of the private settlement of the estate ofJóhannes Sveinsson Kjarval, on the basis that not all the assets which should have been taken into account at the initial settlement, cf. Art. 95,par. 2 of the Act No. 20/1991, had come to light.
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On the one hand it was maintained that objects taken from the studio of Jóhannes S. Kjarval at Sigtún 7, Reykjavik, in the autumn of 1968 and which came into the custody of the City of Reykjavik were the property of the estate at death and should have been taken into account at the settlement.The title to these objects is disputed and the present case is brought before the court because of that dispute.
On the other hand it was maintained that a roll or length of paper with 10 charcoal drawings by Jóhannes S. Kjarval, which was found in the College of Navigation (Stýrimannaskóli) in 1994 was the property of the estate. Thereis no knowledge of any dispute regarding this ownership and the works in question are in the custody of the artist's descendants. By a letter dated6 February 2004, the Reykjavik District Commissioner consented to a reeopening of the private settlement of the estate of Jóhannes S. Kjarvalon the grounds of Art. 95, par. 2 of the Act No. 20/1991, cf. Art.155 ofthe said Act. This division takes place under the direction and on the responsibility of the parties substituting for the deceased original heirs who were, as has already been stated, the children of the deceased.
By a letter from the plaintiff's attorney-at-law, dated 20 June 2004, to the City of Reykjavik, a claim was presented to the City for the restoration of all pictorial work and other objects removed from the studio at Sigtún 7, Reykjavik during the latter half of 1968. It was also requested that in the event of the acceptance of the request for restoration, an agreement would be made between the parties as to how the restoration would take place and, as applicable, how other related matters of contention would be settled. Furthermore, a special request was made for a list/summary of the works of art and other objects in the custody of the City of Reykjavik emanating from Jóhannes S. Kjarval, setting out the objects which had come from the studio at Sigtún 7 during the period October to December 1968. The plaintiff's request was answered by a letter from the City Advocate, dated 8 July 2004 (Court Exhibit No. 10); this contains the following:"In reply to your enquiry it should be noted that on 7 November Jóhannes Sveinsson Kjarval gave to the City of Reykjavik the works of art and other objects in question, by an oral declaration of donation. This declaration had the legal effect of transferring the right of ownership of the said works and objects from the artist to the City of Reykjavik. The City of Reykjavik is consequently the legitimate owner of the said works and objects.
With regard to the clear and unambigous title of the City of Reykjavík to the works and objects which Jóhannes Sveinsson Kjarval formally donated to the City in 1968, the claim presented by your client for their transfer is hereby rejected."
This reply, directed to the estate at death of Jóhannes S. Kjarval, makes it clear that the City of Reykjavik bases its position solely on the argument that title to the specified objects was transferred to the City on the basis of the alleged declaration of donation.This case must therefore turn on the point which of the parties has the burden of proof regarding whether or not such a declaration was presented, whether lawful [proof] was obtained that such a declaration was indeed made and, in that case, what the content of it was. As the requested summary did not accompany the above-mentioned letter from the City Advocate, the request for restoration was reeiterated by a letter dated 16 July 2004.
A letter from the City Advocate, dated 1 September 2004, was accompanied by a record from the Reykjavik Art Gallery (Listasafn Reykjavíkur), listing the objects of Jóhannes S. Kjarval which were at Sigtún 7, Reykjavik. These lists are presented in the case at hand, in Court Exhibits Nos. 3, 4, 5 and 6 and classed in the same way as is done in the letter of the Director ofthe Reykjavik Art Gallery, dated 26 August, in Court Exhibit No. 7, underthe items/points marked a)-d).
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In the present case and on behalf of those who now stand to inherit Jóhannes S. Kjarval, a judgement is sought on recognition of the title of the estate at death of painter Jóhannes S. Kjarval to works of art andother objects which came into the custody of the defendant, the City of Reykjavik, in the autumn of 1968, more specifically in October, November and December that year, during which period they were removed from the artist's studio at Sigtún 7, Reykjavik. It is further demanded that these objects be, on pain of per diem fines, handed over to the estate in order that they may be included in the division of the inheritance, the defendant being clearly obliged, upon recognizance of title, to restore the objects to the estate as the custodyof these items is not based on authorisation from the owner. On behalf of the defendant, the City of Reykjavík, it is argued, as has been described above, that the City is the lawful owner of the said items and thus under no obligation to hand them over. This case has been brought in order to obtain a final decision in the parties' dispute, and in order for the objects whose restoration is demanded to be brought under the settlement of the estate according to law.
The claim for recognition and restoration in this case covers thousands of separate objects. Claims in which reference is made to lists in court exhibits already presented are made in order to facilitate matters, and are based on the cited Court Exhibits Nos. 3 to 6, deriving from the defendant.It is noted that the plaintiff reserves the right to institute continuing proceedings or to start new proceedings if it comes to light that the enumeration of items in Court Exhibits Nos 3-6 is not an exhaustive enumeration of the items which the defendant took into its custody in October, November and December 1968. Furthermore, the plaintiff reserves the right to demand the payment of damages from the City of Reykjavík in special proceedings if the estate's claims in the present proceedings are accepted. 2. Title to the works of art and other objects which were removed fromthe studio of Jóhannes S. Kjarval in the autumn of 1968.
On behalf of the plaintiff, an account of the main events and documents relating to the parties' principal matters of contention follows below. Asa long time has passed since the events occurred, the plaintiff feels it is appropriate to relate the facts of the case and the documents in considerable detail. The painter Jóhannes S. Kjarval lived for many years and had his studio atSigtún 7, Reykjavík, in a house which generally went by the name of Breiðfjörðsblikksmiðja (Br. metal works).
This was the place where the artist ended his long and productive career. During the years 1966/67 Jóhannes S. Kjarval moved from Sigtún 7, Reykjavík to Hótel Borg, where he had a room at his disposal. At the time, his health had begun to deteriorate and there were instances of people taking advantage of his isolation/loneliness to touch him for money and valuables, cf. details on a memo sheet in Court Exhibit No. 24. Dealing with the artist's last years, the second volume of Kjarval's biography by Indriði G. Þorsteinsson states on pp. 311-312:"Kjarval had for a long time had insomnia problems and now this malaise increased as his strength began to fail and geriatric diseases set in. During this difficult period he took up residence at Hótel Borg."Regarding Kjarval's health, reference may in part be made to the letter from psychiatrist Hannes Pétursson, dated 14 June 1985, which discloses that the artist was being treated at the psychiatric department of theCity Hospital (Borgarspítali) from 18 February 1969 and up to his death, Kjarval having entered the National Hospital (Landspítali) on 28 January1968 and been transferred from there to the City Hospital.
The doctor's letter, contained in Court Exhibit No. 28, says:
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"Jóhannes Sveinsson Kjarval was admitted to the Psychiatric Department of the City Hospital (Borgarspítali) in Reykjavík on 18.02.1969 (day/month/year) and died there on 13.04.1972. The reason for his admission was general senility, which gradually increased up to his death. "The right is reserved to present further information on the deceased's health during the period in question, if the defence put forward by the defendant gives cause to do so. During the latter part of 1968, in Jóhannes S. Kjarval's 83rd year,measures were taken to clear his studio at Sigtún 7, as the owner of the premises needed them for his own use. Available data indicate that work began in the latter part of October 1968 on packing objects that were there and that in this Kjarval was assisted by various persons, chiefly Alfreð Guðmundsson, who later became the Directorof [the museum] Kjarvalsstaðir, and his family, and also to some extent Ólafur Þórðarson, his nephew [sister's son], in addition to taxi drivers, who were engaged for the transport of objects from Sigtún.The objects in question were both in the studio itself and in a storageattic above it. Most of the material taken from the studio at Sigtún 7 went to the City Archives (Borgarskjalasafn Reykjavikur). After Jóhannes S. Kjarval had been hospitalized in the beginning of 1969, Sveinn Kjarval, with the help of his daughter María, seems to have packed what was left in the studio and put it into storage in a boathouse at the "Kjarvalshús" (Kjarval House) on Seltjarnarnes. The part of the material that went to the City Archives is now in the custody of the Reykjavik Art Gallery (Listasafn Reykjavíkur) and theGallery Kjarvalsstaðir, while the objects that went to "Kjarvalshús" are in storage in the J.L. building on Hringbraut in Reykjavík, having been moved there by the artist's grandchildren living here in Iceland.Neither of Jóhannes S. Kjarval's two children were in Iceland when the artist's items were removed from Sigtún 7. As has already been mentioned, they moved with their mother to Denmark in1924 and Aase lived there until her death. Sveinn Kjarval moved back to Iceland in 1939 and married Guðrún Hjörvar Kjarval a year later. Except for a brief interval due to Sveinn's studiesin Denmark in the forties, they lived in Iceland until February 1970, when they moved to Denmark.The circumstances were that Sveinn was staying with his sister Aase inDenmark during the months of October, November and into December1968 in order to try to regain his health, having been suffering from bad healthfor some time.
Sveinn's wife, Guðrún Kjarval, however, was in Iceland during these autumn months of 1968. Regarding her and the family's situation, reference is made to the oral report given by Guðrún and registered in writing on 22 September 2003, contained in Court Exhibit No.41. No steps were taken to consult or contact the descendants of Jóhannes S.Kjarval or their families regarding the clearing of the studio at Sigtún 7 in the autumn of 1968. Regarding this, reference may be made to the letter of Ólafur Þórðarson, Jóhannes S. Kjarval's nephew, which he sent to Sveinn Kjarval, dated 10November 1968. Court Exhibit No. 18 begins as follows:
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"I think it was on the Tuesday 5/10 that Guðrún telephoned me and said that your father probably was making preparations for moving some of his things in the studio and said that you had suggested I pay the old man a visit,which I was only too glad to do - although he is impossible to steer when he sets his course. I was in my office at Rl. and as it was the turn of the month and I had not finished settling the books - the usual - and Guðrún said the matter wasn't urgent, I did not go into town until Wednesday 6/10."It seems clear from notebooks which Ólafur kept that the days referred to in the letter are in November, not October, as this is in harmony with other information, entries in the spaces for the days 6 and 7 November 1968 being concordant with the substance of the letter, cf. the photocopy from the notebook in Court Exhibit No. 19. The a forementioned notebook of Ólafur Þórðarson was delivered to the undersigned attorney-at-law by his son, Jón Þórður Ólafsson, and the original will be presented in court if the defendant requests it. Further on, describing events on 6 November 1968, the letter states:"Before we left the studio, Kjarval wanted my opinion on asking the Municipal Gallery to store the stuff - I took a moment to think - looked at him and tried to assess him (his mood) - and said: Why not sort the things into new packaging and put everything in one place in the new house in the west of town, and then unpack it later - No, no, I can't stand the thought,he said. So I said - if you're happy with that - at the time I said I saw nothing against it - and on reflection perhaps this would be best. I saw it was no use trying another solution and he was so tired and unwell that hewould become even more depressed if he was expected to go through all th estuff - he doesn't have the strength - and each new item awakens new memories - perhaps a book never opened or a box of cigars from a friend now deceased. A Christmas cake, Christmas paper, etc."Towards the end, the letter says:"And as for you, I think you should take all this with the greatest serenity - and be thankful that you do not have to participate in the nerve-racking business of being in the midst of this turmoil."Ólafur Þórðarson was the only person related to the family of Jóhannes S.Kjarval who had direct relations with him regarding the clearing of the studio in Sigtún in the autumn of 1968. It is clear from Ólafur Þórðarson's letter that he thought the City ofReykjavik was only taking the objects in question into safekeeping, in order to prevent their going astray, with a reference made to a conversation with Kjarval on the subject. This position has also been confirmed in conversations that the undersigned has had with Ólafur's son, Jón Þórður Ólafsson. It is furthermore clear from Ólafur's letter to the artist's daughter, Aase, dated 11. November 1971, that he considered the objects to have been delivered for storage and safekeeping, cf. Court Exhibit No. 21. According to the letter of art historian Steinunn Bjarman to Kjarval, dated 10 January 1969, contained in Court Exhibit No. 16, the then Reykjavik CityArchivist Lárus Blöndal, had entrusted her with going through andclassifying the objects that had arrived from Kjarval's studio during thelast months of 1968.In this letter Steinunn says:"Last November Lárus Blöndal, City Archivist, entrusted me with goingthrough and classifying objects that the Archives received from you at thetime. The work procedure was as follows:
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Everything was taken out of all the boxes in which the objects arrived and duly vacuumed, dusted, washed or cleaned, as appropriate in each instance. The material was then classified, recorded and sorted into boxes. The boxes were then marked and taped, bound with string and sealed. Apart from myself, only two cleaning ladies have gone through the material and we haveall tried to handle it as gently as we could and avoided any prying into letters or other things. This work is now completed and I am sending you herewith a copy of the list which I drew up when putting the material in order. I hope that upon reading this list you will find that everything has been accounted for so far as possible. "The list referred to in the letter is contained in Court Exhibit No. 17. The first page of the list reveals that the total number of boxes sealed was 153, including 14 boxes of sketches and 56 boxes/cases of pictures and paintings. The list sets out in the main what objects were put into each box. The list has the following heading: "A list of the objects of Jóhannes S. Kjarval in the City Archives."It appears from Steinunn Bjarman's report, dated 12 March 1987, containedin Court Exhibit No. 30, that Jóhannes S. Kjarval had received the above-mentioned letter and list directly from Steinunn on 17 January 1969. The content of Steinunn Bjarman's letter to Jóhannes S. Kjarval cannot be seen as indicating that it was written to a man who had donated the objects in question; on the contrary. Furthermore, mention is made of Jóhannes S.Kjarval's items in the City Archives in the list she drew up. As is apparent from Steinunn Bjarman's letter, the boxes into which she put/packed Kjarval's objects were sealed as if for secure storage. Now here in these documents is there any mention of a donation. The a forementioned letter and list from Steinunn are the only contemporary documents deriving from the City of Reykjavik regarding the objects which were taken from the studio in Sigtún 7. These are also the only document semanating from the City of Reykjavik which were written to the artist after the objects listed had arrived in the keeping of the City of Reykjavik. In a memorandum dated 21 September 1982, Court Exhibit No. 27, by SupremeCourt Attorney Baldur Guðlaugsson, who was engaged to work for the heirs of Jóhannes S. Kjarval and Sveinn Kjarval, the attorney quotes Guðrún Kjarvalas saying she had made a telephone call to the then Mayor of Reykjavik GeirHallgrímsson, after having received news of the transport of Kjarval's things to the City Archives and that Geir had indicated that the objects were being taken into safekeeping. It seems clear that this conversation took place in November 1968, shortlyafter Guðrún had received news of the transport taking place. It is a fact that the defendant, the City of Reykjavik, does not possess any certificate of donation or other documents in support of its alleged title to the objects that the City received for safekeeping in the autumn of 1968 and that were initially moved to the Reykjavik City Archives. There is no entry regarding the alleged donation by Jóhannes S. Kjarval in the Minutes of the City Council (Borgarstjórn) or the City Executive Committee (Borgarráð), nor is it in any way registered as property of theCity.
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The daily Morgunblaðið, in its issue of 2 November 1971, Court Exhibit No.20, carried a news item to the effect that the City of Reykjavik had received a donation from Jóhannes S. Kjarval, stating initially:"The painter Jóhannes S. Kjarval has donated a large collection of drawings to the City of Reykjavik. City Advocate Páll Líndal told Mbl. [Morgunblaðið] yesterday that the volume of the collection had not been fully ascertained, but sorting the drawings and other work in this connection is underway."The article does not mention when the referred donation was made. On 3November 1971, Morgunblaðið publishes pictures of three of Kjarval's works stating that the artist had donated the pictures to the City in the autumn of 1968.The background for this public mention at that time is not clear but information on the state of health of Jóhannes S. Kjarval at the time clearly indicates that he was incapable of realizing the importance of it, if indeed he ever saw it.
No documentation has been produced from the period 1968 to 1982 containing statements on behalf of the City of Reykjavik or its representatives regarding the manner in which a declaration of donation was given. It was thus not clear during this period whether the City of Reykjavik was in possession of a donation declaration emanating from Jóhannes S. Kjarval. The documents presented indicate that the descendants of Jóhannes S.Kjarval felt, soon after the private settlement of the estate at death ofJóhannes S. Kjarval was completed in 1973, that the City of Reykjavik was not the legitimate owner of the objects which came into the custody of the City in the autumn of 1968. Regarding this, reference may be made to the fact that Sveinn Kjarvalcalled a public press meeting in the autumn of 1975 where he expressed the views he held on the subject. A further reference may also be made to a letter from Sveinn Kjarval to his son Jóhannes, dated 28 December 1976, and a power of attorney dated the same day, cf. Court Exhibit No. 22. In the course of the following years, Sveinn approached at least two lawyers regarding these matters. On 7 January 1981, Aase Kjarval Løkken, Sveinn's sister, signed a Power of Attorney issued to him, giving him her authorization to represent her regarding matters concerning the inheritance from her father, cf. CourtExhibit No. 23. Sveinn Kjarval died in February 1981 and thus did not live long enough to seek redress of the situation vis-à-vis the City ofReykjavik.
The above clearly denotes that Kjarval's descendants were not at all in agreement with the statements of the City of Reykjavik to the effect thatKjarval had donated to the City the objects which came into the City's custody in tha autumn of 1968. It has been further confirmed in conversations with the descendants of Kjarval's children that the matter weighed heavily on both Sveinn and Aase and that they felt they had been treated unfairly.
After Sveinn's death and through the good offices of art dealer GuðmundurAxelsson of the firm Klausturhólar, the attorney-at-law Baldur Guðlaugsson was engaged to investigate the legal status of the heirs of Jóhannes S. Kjarval and Sveinn Kjarval regarding the objects in question, which were in the custody of the City of Reykjavik. Due to the views [on these matters] which seem to have come to light in the course of the investigation by the attorney-at-law and which came to the notice of the City of Reykjavik, a meeting was held on the subject in the office of the Mayor of Reykjavik on 5 August 1982, attended by Davíð Oddson, then Mayor of Reykjavik, Geir Hallgrímsson, former Mayor, Jón G.Tómasson, then City Advocate and Alfreð Guðmundsson, former Director of the Kjarvalsstaðir Gallery.
A memorandum on this meeting is presented as Court Exhibit No. 24,confirmed by the initials DO, denoting the name of the then Mayor, Davíð Oddsson. This document constitutes the first written data emanating
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from the defendant setting out a discussion of the basis on which the City considers itself as holding a title to the objects in question in the present case.The reason for the meeting is described at the beginning as being that the heirs of Jóhannes S. Kjarval and the heirs of Sveinn Kjarval had, through the intervention of art dealer Guðmundur Axelsson of Klausturhólar,approached a lawyer in order to demonstrate that the City of Reykjavik had not received paintings, drawings and other objects as a gift from Kjarvalbut that these objects had merely been taken into safekeeping.The memorandum quotes Geir Hallgrímsson:"Geir Hallgrímsson said that these pictures along with other objects had been delivered to him by Kjarval on 7 November 1968, at Kjarval's instigation. There is no doubt in his mind but that this was a donation to the City, not subject to any obligation except that the City would have the pictures repaired and would have them on display in its buildings."These words of Geir Hallgrímsson do not set forth any direct statement regarding any alleged oral declaration of donation by Jóhannes S. Kjarval; rather, it seems to have been his own deduction that the fact that the City took the objects into its keeping meant that this was indeed a donation.
The memorandum does not quote any statement by Alfreð Guðmundsson on his position or knowledge of the coming into being of the City's alleged ownership of the items.It is disclosed that the City Advocate considers that the burden of proof lies with the heirs and that on this point it would be highly significantthat the matter had not been broached until almost ten years after the speech made by Birgir Ísleifur Gunnarsson, former Mayor, at the opening of Kjarvalsstaðir Museum, the speech having been published in the programme covering the opening and indicated that the City had acquired all the worksin question. Reference is also made to the fact that in the speech made by[Nobel prize winning author] Halldór Laxness at the opening it had also been noted that the City had had pictures "bequeathed" to it prior to Kjarval's death. The memorandum further states, in continuation of the discussion on Halldór Laxness' speech:"Some how he, this well-known friend of Kjarval, had had an indication about this. Most probably this has escaped the attention of Baldur Guðlaugsson."The deduction made on the basis of the mention in Halldór Laxness' speechof the alleged gift or donation does not hold water since already by this time a news item had appeared in Morgunblaðið, as is stated above, in addition to which the writer could of course possibly have received information on "the gift" from the City of Reykjavik. Considering events at the end of 1968 and the beginning of 1969 and Kjarval's health at the time,it seems rather unlikely that Halldór Laxness had had information regarding this from Kjarval himself. Furthermore one cannot but deduct from these words that when the meeting was held, those attending it had known about the conclusion or position of[attorney] Baldur Guðlaugsson, which was not in harmony with the view of the City of Reykjavik to the effect that what was involved was indeed a donation. At the end of the memorandum, the following is entered:"It was decided that Geir should try to contact Ragnar í Smára, who is now in hospital, and also Halldór Laxness, in order to obtain their confirmation. Otherwise, it was decided that the City Advocate should (now) contact Baldur Guðlaugsson and obtain information regarding the documentation he has in the case and make a thorough search of all the documents possibly to be found in the City's Archives."A hand-written annotation on the memorandum says:
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"Meeting 20/9 '82 with Supreme Court Attorney Baldur Guðlaugsson. General agreement that all documents likely to be found had now come to light. Baldur said he would inform his clients of the situation and then let the City know about the continuation."The handwritten text also carries the initials DO in confirmation. The summary drawn up by attorney-at-law Baldur Guðlaugsson appears in a memorandum dated 21 September 1982, the day after the above-mentioned meeting with the Mayor. One can therefore assume that the documents and information which the attorney refers to were available at the meeting with the Mayor.
He begins by mentioning the documents he investigated and the persons hecontacted regarding the matter. No contact was made with Halldór Laxness nor with Ragnar í Smára, to whom reference had been made at the meeting on 5 August 1982. It has also come to light that there do not exist any confirmations from the referred parties in accordance with the plan set out in the memorandum from the meeting on 5 August 1982.
According to the attorney's summary, the City of Reykjavik bases its title on the view that the transfer of ownership to the City had taken place through an oral declaration of donation by Kjarval to the Mayor on 7 November 1968. It now happened/occurred that in verification of that statement, a written attestation by Alfreð Guðmundsson was presented, confirmed by his initials, dated 18 September 1982, stating as follows:"I was present on 7 November 1968 at Sigtún 7 when Jóh. S. Kjarval formally announced to Geir Hallgrímsson his donation to the City of Reykjavik. I summoned Geir to come to this place at the request of Kjarval, who earlier had told me that he intended to hand over to the City of Reykjavik (certain) works of art and other objects as a gift."Geir Hallgrímsson himself seems not to have been able to attest to such aformal declaration, either at the meeting on 5 August 1982 or in talks with the attorney.The summary quotes Geir Hallgrímsson as follows:"Geir Hallgrímsson, former Mayor, says he is convinced that this was indeed a donation, but he does not remember how it came about. Geir said that J.Kj. had been concerned that his works and objects should not be dispersed more widely than was already the case and that he therefore wanted the Cityof Reykjavik to acquire the said objects and keep them at Kjarvalsstaðir,which he had taken to his heart. Geir felt that J. Kj. had not wanted the donation to be publicized and this was why no entry had been made of this in minutes of the meetings of the City's Executive Committee, as suchminutes were public documents."This summary does not contain any statement by Geir Hallgrímson regarding an oral declaration of donation by Jóhannes S. Kjarval on 7 November 1968.
Furthermore, it can hardly be seen how Geir Hallgrímsson's statement tothe effect that Jóhannes S. Kjarval had not wanted "the donation" to be made public, is compatible with the news item which was published inMorgunblaðið at the beginning of November 1971, which already has been mentioned.
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The conclusion drawn by attorney Baldur Guðlaugsson was that he consideredit likely that the courts would find it fully demonstrated that Jóhannes S.Sveinsson (sic) had donated and made over to the City of Reykjavik the objects in question on 7 November 1968. He also considered it possible that, in the event that a court might regard the act of donation as not being successfully proved, it would conclude that the City of Reykjavik had acquired title through custom. In the opinion of the plaintiff, the conclusion reached by the attorney does not stand up, as indeed it is entirely unclear on what premises the assertions of the beneficiary can be used as a basis in this matter. According to documents obtained, the next time these objects came up for discussion by the City of Reykjavik was in a letter from Þóra (Thora) Kristjánsdóttir, former artistic consultant of Kjarvalsstaðir, dated 4 November 1985, to the Reykjavík City Executive Committee, in Court ExhibitNo. 29, discussing the objects in question; this states at the beginning: "The City of Reykjavík's Kjarval Collection was discussed at a meeting ofthe Board of Kjarvalsstaðir, held on 1 November 1985. The reason for this is that the huge collection of drawings, letters, books and personal item swhich Kjarval bequeathed to the City of Reykjavík in 1968 and which has been kept in sealed boxes at Korpúlfsstaðir until this summer, was moved to Kjarvalsstaðir and briefly inspected. A very small part of this donation is now on show at the exhibition Kjarval Centenary (Aldarminning), at Kjarvalsstaðir, but the main part of the collection is still unregistered and awaits further study and restoration work in the basement of Kjarvalsstaðir." Following on from this, Steinunn Bjarman was engaged to work on the cataloguing of these objects and this work lasted through out the years 1985, 1986 and 1987. Regarding the handling of the objects which came into the custody of the City of Reykjavík during the last months of 1968, reference may be made to the report of Steinunn S. Bjarman, dated 12 March 1987, in Court ExhibitNo. 30: Regarding the background to the case, Steinunn says in the opening chapter of the book:"I think it was in the latter part of October 1968 that I noticed that in one of the corridors of the City Archives there were two or three boxes containing various articles and on top of them were some hats, which I recognized as being Kjarval's. There was no time to investigate the reason for this, since there was an abnormal amount of work to do in the City Archives during the days in question. The City Archivist at the time was Lárus H. Blöndal, who had taken over the job from Lárus Sigurbjörnsson thea utumn before. Shortly afterwards, more boxes similar to the ones I had already seen started arriving. Lárus H. Blöndal told me they came from Jóhannes Sveinsson Kjarval. Lárus asked me to undertake the job, during the following weeks, of inspecting the contents of these boxes and putting them into storage."Later it says:"The boxes containing the objects were of all sizes and shapes and in general much the worse for wear. I therefore ordered new boxes, whereupon the sorting started, on 6 November 1968."According to this, it is clear that Steinunn had already received instructions and started work on packing objects in the possession ofJóhannes S. Kjarval prior to 7 November 1968. It is stated that Steinunn had received boxes coming from Kjarval until December 1968 and that the packing of the last batch was completed on 18 December that year. According to this, Kjarval's objects had been arriving in the City Archives from the last days of October 1968 and until December.
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After the turn of the year 1968/69, Steinunn said, she had typed out a list
of the objects and delivered this to Kjarval [himself] along with a letter
as already related. On 17 March 1969, Kjarval's objects were placed in the Archives in an
orderly arrangement and they remained there until 7 July 1970, when the
boxes were transferred into storage at Korpúlfsstaðir. The boxes were then left untouched until the summer of 1971, when the boxes
marked "Pictures and paintings" (Myndir og málverk) were opened and the
contents inspected.The report discloses that Steinunn did not have anything further to do with
this matter until the year 1985, when she was asked to sift through those
boxes containing objects from Kjarval which she had packed in November and
December 1968.
According to Steinunn's register/list, which she drew up in 1985-86, the
pictures or paintings which arrived from Sigtún 7 during the period stated
earlier totalled 5.062 separate items. No further action was taken in the matter
on behalf of the descendants of Jóhannes S. Kjarval until 2000, when
Ingimundur Kjarval, son of SveinnKjarval and Guðrún Kjarval, hired
a lawyer to investigate the family's legal position regarding these objects.
On that occasion, the lawyer sent an enquiry to the City Advocate as to the basis on which the City founded its alleged right of ownership.
This led Eiríkur Þorláksson, Director of Kjarvalsstaðir, to seek the aid of the Reykjavík City Archives. In a letter dated 16 May 2001, contained in Court Exhibit No. 31, it seems that among city officials it had been generally assumed that Geir Hallgrímsson, then Mayor, had received a Letter of Donation in 1968. In the letter written by Hjörleifur Kvaran, then City Advocate, dated 22 October 2001, to Ingimundur Kjarval, contained in Court Exhibit No. 34, it is stated that the City of Reykjavík did not insist on receiving Letters of Donation from artists who donate works of art to the city, such a procedure being considered inappropriate.
This explanation is probably put forward in support of it having been natural for the City of Reykjavík not to insist upon a documented confirmation from Jóhannes S. Kjarval regarding the alleged donation.
No information is to be gleaned from either the memorandum on the meeting in the Mayor's office on 5 August 1982 nor in Supreme Court Attorney BaldurGuðlaugsson's summary dated 21 September 1982, in the part dealing with information or explanations forthcoming from former Mayor GeirHallgrímsson, regarding the reasons for his not having insisted that Jóhannes S. Kjarval confirm his donation on 7 November 1968 in writing.
The circumstances of this case must in many ways be considered quite unique, even if only for the number and value of the works involved, in addition to which this comprised almost all the artist's worldly possessions.
In assessing the situation regarding proof, one must consider the fact that the artist was at the time in question, suffering from substantial and worsening senility, and thus there was even greater reason to make all arrangements in a formal and secure manner in order to ensure that there could be no doubt as to his will and purpose regarding the measures taken.
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The explanation that Jóhannes S. Kjarval might have found it inappropriate or too complicated to issue written declarations as to his will and intentions must be considered far-fetched.
It might be mentioned that in September 1966 Jóhannes Kjarval wrote a donation letter covering the property Einarslón on Snæfellsnes peninsula,which had come into his possession through a deed in 1945, cf. CourtExhibit No. 39.
Furthermore, it is disclosed on page 311 in the second volume of Kjarval's biography that in the autumn of 1968 Kjarval wrote the following letter to Björn, the owner of Ketilsstaðir in the district of Hjaltastaðaþinghá, where Kjarval had built himself a small house at a site known as Hvammur:
"Herewith I send you by this letter my fond regards and the key to Hvammur. Even though no brook burbles there, Hvammur is a cheerful and happy place. Good-bye to all of you, bairns and Björn alike."
One cannot conclude from this that Kjarval found it inappropriate or too
complicated to express himself in writing on measures he took
regarding hispossessions. It is argued on behalf of the plaintiff that the
burden of proof regarding an act of donation and its content resides with the alleged beneficiary. It should therefore be fundamental in this case that the burden
of proof lies with the defendant, the City of Reykjavík, which must prove that painterJóhannes S. Kjarval, did indeed, by an oral declaration on 7 November 1968, state in a binding and conclusive manner that the objects which at the time were to be found in his studio at Sigtún 7 and those which earlier had been transferred from it, should become the property of the City of Reykjavík, without any recompense being due to him. With reference to the foregoing discussion of the matter and the documents presented, it must be considered that the City of Reykjavík has by no means managed to prove the existence of such a declaration, and indeed the statements of the representatives and employees of the beneficiary itself cannot be considered valid evidence in this regard. Neither is there other information to support such statements.
No solid evidence exists proving or confirming the statements of the City of Reykjavík regarding its right of ownership.
As a public body, the City of Reykjavík was under a very powerful obligation to establish securely and have confirmed in writing, the purposeof the owner, Jóhannes S. Kjarval, in granting the City the custody of the said objects.
This obligation was particularly binding as nearly all the artist's worldly possessions were involved and it was known that he had statutory heirs still alive, in addition to which consideration of his age and health should have made it
obligatory to have any legal act executed in a formal manner.
In particular, it is argued that the evidence available from the time when the transfer of custody of the objects took place, do not in any way corroborate the
defendant's statements; quite the contrary, as has been described above.
Most important in this aspect is the fact that the documents
addressed to Kjarval himself from Steinunn Bjarman and which he received, do not in any way deal with the transfer of title or a donation; on the contrary, they support the idea that the objects had been accepted for safekeeping. In the documents in the present case the idea has been broached that the City of Reykjavík might have acquired a legal title to the objects which came into the custody of the City in the autumn of 1968 by custom, if itwas not considered proved that they had been donated in the first place.
Regarding this, it is pointed out, firstly, that on behalf of the City of Reykjavík, in its answers to the plaintiff, no mention was made of the acquisition of title by custom; it would hardly be appropriate for a public body to resort to such reasoning against the heirs and the estate at death.
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It is also argued on behalf of the plaintiff that acquisition of title through custom is immediately excluded because, under Art. 2, par. 3 of the Acquisition of Title through Custom Act (Hefðarlög) No. 46/1905, custody which comes into being through storage can not authorise title by custom.
It is clear in this case that if it is not demonstrated that a donation was made, then the delivery of the said objects can only have been for the purpose of storage.
It is also argued that the City of Reykjavík cannot be considered as fulfilling the subjective conditions for title to possessions based on custom, as it was at least clear that its representatives knew or might be expected to know the position of the heirs prior to the earliest time when the period necessary to establish possession through custom could be considered to have elapsed. Failure to exercise a legal right can not result in the transfer of title by other means than by custom and thus the length of time that elapsed since the handing over of the objects in question took place is of no consequence. According to the foregoing, it is argued that the estate at death ofJóhannes S. Kjarval is still the legitimate owner of the objects which were removed from his studio at Sigtún 7, Reykjavik, in October and up to December 1968 and which are now in the custody of the defendant. Thus the claims submitted by the plaintiff for the recognition of ownership and restoration of the objects should be accepted, it being only right and due that they be included in the estate settlement so that a legitimate and unambiguous transfer of title can take place, with, of course, payment of legally prescribed inheritance tax in relation to them. Reference to principal legal sources: Regarding the plaintiff's status as a party to the case, reference is made to the Act No. 20/1991, cf. in particular Art. 85, par. 2 and Art. 95, par.2, as well as Art. 155.
Reference is also made to the Inheritance Act No.8/1962. The plaintiff bases its demands on the general rules of property law and owner's right to custody. Reference is made to the general rules of contract law regarding promises of donations and proof there of. Reference is made to the Act No. 46/1905 on custom. Regarding the plaintiff's claim for recognition, reference is made to Art.25, par. 2 of the Code of Civil Procedure, No. 91/1991. The claim for per diem fines is based on Art. 19, par. 4 of the Act No.20/1991 and the principal rule of that provision and to precedents in cases where demands have been made regarding the performance of obligations not involving the payment of specific sums. The plaintiff's claim for legal costs is based on Art. 129 and 130 of the Act No. 19/1991. The plaintiff is not a party under a legal obligation to pay value-added tax according to the Act No. 50/1988 and thus the tax must be taken into consideration when defining the legal costs. Court Exhibits: On registration of the case, the plaintiff intends to present the following pieces of evidence:
No. 1 The present summons.
No. 2 List.
No. 3 Registration by the City of Reykjavik of works of art byJóhannes S. Kjarval, marked K-0001-5301, taken from the studio at Sigtún 7, Reykjavik in 1968.
No. 4 Registration by the City of Reykjavik of works of art by other artists, taken from the studio at Sigtún 7, Reykjavik in 1968.
No. 5 Registration by the City of Reykjavik of various objects taken from the studio at Sigtún 7, Reykjavik in 1968.
No. 6 Registration by the City of Reykjavik of books taken from the studio at Sigtún 7, Reykjavik in 1968.
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No. 7 Letter from Eiríkur Þorláksson, Director of the ReykjavikArt Gallery, to the City Advocate, dated 26 August 2004.
No. 8 Letter from the City Advocate to the plaintiff's attorney, dated 1 September 2004.
No. 9 Letter from the plaintiff's attorney to the City Advocate(Reykjavik City Advocate), dated 16 July 2004.
No. 10 Letter from the City Advocate, dated 8 July 2004.
No. 11 Letter from the plaintiff's attorney dated 20 June 2004.
No. 12. Letter from the Reykjavik District Commissionerdated 6 February 2004
No. 13 Request for a reopening of the private settlement of estate,dated 19 November 2003
No. 14 License for a private settlement of estate,dated 18 April 1972.
No. 15 Inheritance tax report, dated 1 April 1973.
No. 16 Letter from Steinunn Bjarman to Jóhannes S. Kjarval,dated 10 January 1968.
No. 17 List of the objects belonging to Jóhannes S. Kjarval in theReykjavík City Archives, drawn up by Steinunn Bjarman.
No. 18 Letter from Ólafur Þórðarson to Sveinn Kjarval,dated 10 October (November) 1968.
No. 19 Photocopy from Ólafur Þórðarson's notebook from 1968(made over by his son).
No. 20 Photocopy of an article appearing in Morgunblaðið, 2. Nov. 1971.
No. 21 Copy of Ólafur Þórðarson's letter dated 10 November 1971,together with a photocopy from Morgunblaðið of 3 Nov. 1971.
No. 22 Letter from Sveinn Kjarval, dated 28 December 1976,with a copy of a power of attorney.
No. 23 Power of attorney dated 7 January 1981.
No. 24 Memo of a meeting in the Mayor's office on 5 August 1982.
No. 25 Alfreð Guðmundsson's declaration, dated 18 September 1982.No. 26 Photocopy from Alfreð Guðmundsson's diary.
No. 27 Baldur Guðlaugsson's memorandum, dated 21 Sept. 1982.
No. 28 Letter from Senior Physician Hannes Pétursson,dated 14 June 1985
No. 29 Þóra Kristjánsdóttir's report to the City Executive Committee,dated 4 November 1985.
No. 30 Steinunn Bjarman's report, dated 12 March 1987.
No. 31 Copy of correspondence from Soffía Kjaran, dated 16 May 2001.
No. 32 Record of a telephone conversation with SvanhildurBogadóttir, City Archivist, dated 30 May 2001.
No. 33 Record of a telephone conversation with Eiríkur Þorlákssondated 1 June 2001.
No. 34 Letter from City Advocate Hjörleifur B. Kvaran, dated 27June 2001 with attachments/enclosures.
No. 35 Letter from City Advocate Hjörleifur B. Kvaran, dated 22October 2001
No. 36 Summary from Kjarvalsstaðir of "The Kjarval Donation".
No. 37 Photocopy from the newspaper DV 22-23 June 1994(charcoal drawings).
No. 38 Photocopy from the biography of Jóhannes Sveinsson Kjarval,volume II, pp. 301-317.
No. 39 Copy of Kjarval's letter dated 14 September 1966.
No. 40 Survey of Kjarval's life and artistic career.
No. 41 Statement by Guðrún Kjarval, recorded on 22 September 2003.
No. 42 Power of attorney granted by Guðrún Kjarval,dated 22 September 2003.
No. 43 Power of attorney granted by Mette Stiil, dated 5 November 2003.The right is reserved to present further evidence.
Testimony: On behalf of the plaintiff, the right is reserved to call parties and witnesses. The plaintiff will give further details on the hearing of testimony when the defendant has presented its defence.
Summons: Consequently, Steinunn Valdís Óskarsdóttir, ID-No. 070465-5239, Rauðalæk23, Reykjavík, Mayor, on behalf of the City of Reykjavik, Reg. No. 530269-7609, Reykjavik Town Hall, is hereby summonsed to appear att he registration of the present case in the Reykjavik District Court,courtroom 102, in the Courthouse at Lækjartorg, Reykjavik, on Tuesday 19 April 2005 at 10:00, in order there and then to see documents and evidence presented to the court, hear the prosecution of the case and present her defence. If no appearance is made on behalf of the defendant, it is to be expected that the demands of the plaintiff will be accepted as they are presented. The minimum period between the service of the summons and the registrationof the case is three days.
Reykjavik, 15 April 2005 on behalf of the plaintiff, Kristinn Bjarnason Supreme Court Attorney
Page No. 1
Presented in theReykjavik District Court,19 April 2005
S U M M O N S
Guðrún KjarvalID-No. 190117-2869 Krugervej 64, Sejs 8600 Denmark and
Mette Stiil Strandvejen 17, Tranum 9460, Brovst Denmark
Make known: That they must, on behalf of the estate at death of Jóhannes SveinssonKjarval, ID-No. 150985-9908, whose last legal domicile was at Lindargata 7,Reykjavik, initiate proceedings before the Reykjavik District Court against:The City of Reykjavik, Reg. No. 530269-7609,The Town Hall, Reykjavik.
Claims submitted to the Court:
1. Claim for recognition:The plaintiff, the estate at death of Jóhannes Sveinsson Kjarval, presents a claim for recognition by a court judgement of the title to the following objects, which were removed from the studio of the deceased at Sigtún 7,Reykjavik, in October, November and December 1968 and which are in the custody of the defendant, the City of Reykjavik according to Court ExhibitsNos. 3, 4, 5 and 6, as follows: a) Works of art by Jóhannes S. Kjarval, listed and marked K-0001-5301 in Court Exhibit No. 3.b) Works of art by other artists than Jóhannes S. Kjarval, listed and marked LR-1696-1718, in Court Exhibit No. 4.c) Various objects listed and marked K-001-347 in Court Exhibit No. 5.d) Books listed in Court Exhibit No. 6.2. Claim for restoration - per diem finesThe plaintiff, the estate of Jóhannes Sveinsson Kjarval, requests that the defendant, the City of Reykjavík, be sentenced to restore to the plaintiff the following objects, which were removed from the studio of the deceased at Sigtún 7, Reykjavik, in October, November and December 1968 and are in the custody of the defendant, the City of Reykjavik according to CourtExhibits No s. 3, 4, 5 and 6, as follows: a) Works of art by Jóhannes S. Kjarval, listed and marked K-0001-5301 in Court Exhibit No. 3.b) Works of art by other artists than Jóhannes S. Kjarval, listed and marked LR-1696-1718, in Court Exhibit No. 4.c) Various objects listed and marked K-001-347 in CourtExhibit No. 5.d) Books listed in Court Exhibit No. 6.
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It is requested that the defendant, the City of Reykjavik, to be sentenced to pay per diem fines of ISK 200.000,00 for each day, if the restoration of the listed objects to the plaintiff has not taken place within 15 days ofthe pronouncing of the sentence.
3. Claim for legal costs
The plaintiff demands payment of legal costs out of the hand of the defendant to the extent of holding the plaintiff indemnified, including 24.5% value-added tax according to an invoice for legal costs which will bepresented at the main hearing of the present case. Representation: The undersigned attorney-at-law, Supreme Court Attorney Kristinn Bjarnason, ID-No. 240364-2209, Lágmúla 7, Reykjavik, is conducting the case on behalfof the plaintiff.
Facts of the case and other circumstances:
1. Basis for the action - involvementThe facts of the case are that painter Jóhannes Sveinsson Kjarval, born 15 September 1885, died on 13 April 1972. His legal heirs were the children ofthe deceased and Tove Merild, whom he married in 1915: Aase, born in 1917, and Sveinn, born in 1919. Jóhannes S. Kjarval and Tove Merild separated in1924, when she moved with their children to Denmark. On 18 April 1972 Sveinn Kjarval and Aase Kjarval Løkken requested the authorization of the District Commissioner (then City Magistrate) of Reykjavik for a private settlement (division) of the estate at death of Jóhannes Kjarval and a license to that effect was granted the same day. At that time and during the time required for the private settlement of the estate both heirs of the deceased were living in Denmark. The private settlement of the estate was completed by a Report on Estate Settlement (Inheritance Declaration), dated 1 April 1973, signed in Brøkhus, Denmark, which was delivered to the District Commissioner (CityMagistrate) in Reykjavik and the inheritance tax was paid on 16 April 1973. According to the Report on Estate Settlement the assets coming up for division were in the total value of 1.415.000.00 old Icelandic krónur and consisted of the following:1. Monetary assets old Icel.kr. 1,390,000.002. Drawings on the walls of a room at Austurstræti 10a - " - 25,000.00 Deducted from this sum was the amount of 60,000.00 old Icel. kr. in costs, resulting in net assets of 1,355.000,00 old Icel. kr. to be divided. Aase Kjarval Løkken and Sveinn Kjarval are both deceased. (Aase Kjarval Løkken had one daughter, Mette Stiil, her sole heir.) The surviving wife of Svein Kjarval is Guðrún Kjarval, who remains in possession of the couple's undivided estate.
By a letter to the District Commissioner of Reykjavik dated 19 November 2003, the undersigned attorney-at-law requested, on behalf of Mette Stiil and Guðrún Kjarval, a reopening of the private settlement of the estate ofJóhannes Sveinsson Kjarval, on the basis that not all the assets which should have been taken into account at the initial settlement, cf. Art. 95,par. 2 of the Act No. 20/1991, had come to light.
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On the one hand it was maintained that objects taken from the studio of Jóhannes S. Kjarval at Sigtún 7, Reykjavik, in the autumn of 1968 and which came into the custody of the City of Reykjavik were the property of the estate at death and should have been taken into account at the settlement.The title to these objects is disputed and the present case is brought before the court because of that dispute.
On the other hand it was maintained that a roll or length of paper with 10 charcoal drawings by Jóhannes S. Kjarval, which was found in the College of Navigation (Stýrimannaskóli) in 1994 was the property of the estate. Thereis no knowledge of any dispute regarding this ownership and the works in question are in the custody of the artist's descendants. By a letter dated6 February 2004, the Reykjavik District Commissioner consented to a reeopening of the private settlement of the estate of Jóhannes S. Kjarvalon the grounds of Art. 95, par. 2 of the Act No. 20/1991, cf. Art.155 ofthe said Act. This division takes place under the direction and on the responsibility of the parties substituting for the deceased original heirs who were, as has already been stated, the children of the deceased.
By a letter from the plaintiff's attorney-at-law, dated 20 June 2004, to the City of Reykjavik, a claim was presented to the City for the restoration of all pictorial work and other objects removed from the studio at Sigtún 7, Reykjavik during the latter half of 1968. It was also requested that in the event of the acceptance of the request for restoration, an agreement would be made between the parties as to how the restoration would take place and, as applicable, how other related matters of contention would be settled. Furthermore, a special request was made for a list/summary of the works of art and other objects in the custody of the City of Reykjavik emanating from Jóhannes S. Kjarval, setting out the objects which had come from the studio at Sigtún 7 during the period October to December 1968. The plaintiff's request was answered by a letter from the City Advocate, dated 8 July 2004 (Court Exhibit No. 10); this contains the following:"In reply to your enquiry it should be noted that on 7 November Jóhannes Sveinsson Kjarval gave to the City of Reykjavik the works of art and other objects in question, by an oral declaration of donation. This declaration had the legal effect of transferring the right of ownership of the said works and objects from the artist to the City of Reykjavik. The City of Reykjavik is consequently the legitimate owner of the said works and objects.
With regard to the clear and unambigous title of the City of Reykjavík to the works and objects which Jóhannes Sveinsson Kjarval formally donated to the City in 1968, the claim presented by your client for their transfer is hereby rejected."
This reply, directed to the estate at death of Jóhannes S. Kjarval, makes it clear that the City of Reykjavik bases its position solely on the argument that title to the specified objects was transferred to the City on the basis of the alleged declaration of donation.This case must therefore turn on the point which of the parties has the burden of proof regarding whether or not such a declaration was presented, whether lawful [proof] was obtained that such a declaration was indeed made and, in that case, what the content of it was. As the requested summary did not accompany the above-mentioned letter from the City Advocate, the request for restoration was reeiterated by a letter dated 16 July 2004.
A letter from the City Advocate, dated 1 September 2004, was accompanied by a record from the Reykjavik Art Gallery (Listasafn Reykjavíkur), listing the objects of Jóhannes S. Kjarval which were at Sigtún 7, Reykjavik. These lists are presented in the case at hand, in Court Exhibits Nos. 3, 4, 5 and 6 and classed in the same way as is done in the letter of the Director ofthe Reykjavik Art Gallery, dated 26 August, in Court Exhibit No. 7, underthe items/points marked a)-d).
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In the present case and on behalf of those who now stand to inherit Jóhannes S. Kjarval, a judgement is sought on recognition of the title of the estate at death of painter Jóhannes S. Kjarval to works of art andother objects which came into the custody of the defendant, the City of Reykjavik, in the autumn of 1968, more specifically in October, November and December that year, during which period they were removed from the artist's studio at Sigtún 7, Reykjavik. It is further demanded that these objects be, on pain of per diem fines, handed over to the estate in order that they may be included in the division of the inheritance, the defendant being clearly obliged, upon recognizance of title, to restore the objects to the estate as the custodyof these items is not based on authorisation from the owner. On behalf of the defendant, the City of Reykjavík, it is argued, as has been described above, that the City is the lawful owner of the said items and thus under no obligation to hand them over. This case has been brought in order to obtain a final decision in the parties' dispute, and in order for the objects whose restoration is demanded to be brought under the settlement of the estate according to law.
The claim for recognition and restoration in this case covers thousands of separate objects. Claims in which reference is made to lists in court exhibits already presented are made in order to facilitate matters, and are based on the cited Court Exhibits Nos. 3 to 6, deriving from the defendant.It is noted that the plaintiff reserves the right to institute continuing proceedings or to start new proceedings if it comes to light that the enumeration of items in Court Exhibits Nos 3-6 is not an exhaustive enumeration of the items which the defendant took into its custody in October, November and December 1968. Furthermore, the plaintiff reserves the right to demand the payment of damages from the City of Reykjavík in special proceedings if the estate's claims in the present proceedings are accepted. 2. Title to the works of art and other objects which were removed fromthe studio of Jóhannes S. Kjarval in the autumn of 1968.
On behalf of the plaintiff, an account of the main events and documents relating to the parties' principal matters of contention follows below. Asa long time has passed since the events occurred, the plaintiff feels it is appropriate to relate the facts of the case and the documents in considerable detail. The painter Jóhannes S. Kjarval lived for many years and had his studio atSigtún 7, Reykjavík, in a house which generally went by the name of Breiðfjörðsblikksmiðja (Br. metal works).
This was the place where the artist ended his long and productive career. During the years 1966/67 Jóhannes S. Kjarval moved from Sigtún 7, Reykjavík to Hótel Borg, where he had a room at his disposal. At the time, his health had begun to deteriorate and there were instances of people taking advantage of his isolation/loneliness to touch him for money and valuables, cf. details on a memo sheet in Court Exhibit No. 24. Dealing with the artist's last years, the second volume of Kjarval's biography by Indriði G. Þorsteinsson states on pp. 311-312:"Kjarval had for a long time had insomnia problems and now this malaise increased as his strength began to fail and geriatric diseases set in. During this difficult period he took up residence at Hótel Borg."Regarding Kjarval's health, reference may in part be made to the letter from psychiatrist Hannes Pétursson, dated 14 June 1985, which discloses that the artist was being treated at the psychiatric department of theCity Hospital (Borgarspítali) from 18 February 1969 and up to his death, Kjarval having entered the National Hospital (Landspítali) on 28 January1968 and been transferred from there to the City Hospital.
The doctor's letter, contained in Court Exhibit No. 28, says:
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"Jóhannes Sveinsson Kjarval was admitted to the Psychiatric Department of the City Hospital (Borgarspítali) in Reykjavík on 18.02.1969 (day/month/year) and died there on 13.04.1972. The reason for his admission was general senility, which gradually increased up to his death. "The right is reserved to present further information on the deceased's health during the period in question, if the defence put forward by the defendant gives cause to do so. During the latter part of 1968, in Jóhannes S. Kjarval's 83rd year,measures were taken to clear his studio at Sigtún 7, as the owner of the premises needed them for his own use. Available data indicate that work began in the latter part of October 1968 on packing objects that were there and that in this Kjarval was assisted by various persons, chiefly Alfreð Guðmundsson, who later became the Directorof [the museum] Kjarvalsstaðir, and his family, and also to some extent Ólafur Þórðarson, his nephew [sister's son], in addition to taxi drivers, who were engaged for the transport of objects from Sigtún.The objects in question were both in the studio itself and in a storageattic above it. Most of the material taken from the studio at Sigtún 7 went to the City Archives (Borgarskjalasafn Reykjavikur). After Jóhannes S. Kjarval had been hospitalized in the beginning of 1969, Sveinn Kjarval, with the help of his daughter María, seems to have packed what was left in the studio and put it into storage in a boathouse at the "Kjarvalshús" (Kjarval House) on Seltjarnarnes. The part of the material that went to the City Archives is now in the custody of the Reykjavik Art Gallery (Listasafn Reykjavíkur) and theGallery Kjarvalsstaðir, while the objects that went to "Kjarvalshús" are in storage in the J.L. building on Hringbraut in Reykjavík, having been moved there by the artist's grandchildren living here in Iceland.Neither of Jóhannes S. Kjarval's two children were in Iceland when the artist's items were removed from Sigtún 7. As has already been mentioned, they moved with their mother to Denmark in1924 and Aase lived there until her death. Sveinn Kjarval moved back to Iceland in 1939 and married Guðrún Hjörvar Kjarval a year later. Except for a brief interval due to Sveinn's studiesin Denmark in the forties, they lived in Iceland until February 1970, when they moved to Denmark.The circumstances were that Sveinn was staying with his sister Aase inDenmark during the months of October, November and into December1968 in order to try to regain his health, having been suffering from bad healthfor some time.
Sveinn's wife, Guðrún Kjarval, however, was in Iceland during these autumn months of 1968. Regarding her and the family's situation, reference is made to the oral report given by Guðrún and registered in writing on 22 September 2003, contained in Court Exhibit No.41. No steps were taken to consult or contact the descendants of Jóhannes S.Kjarval or their families regarding the clearing of the studio at Sigtún 7 in the autumn of 1968. Regarding this, reference may be made to the letter of Ólafur Þórðarson, Jóhannes S. Kjarval's nephew, which he sent to Sveinn Kjarval, dated 10November 1968. Court Exhibit No. 18 begins as follows:
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"I think it was on the Tuesday 5/10 that Guðrún telephoned me and said that your father probably was making preparations for moving some of his things in the studio and said that you had suggested I pay the old man a visit,which I was only too glad to do - although he is impossible to steer when he sets his course. I was in my office at Rl. and as it was the turn of the month and I had not finished settling the books - the usual - and Guðrún said the matter wasn't urgent, I did not go into town until Wednesday 6/10."It seems clear from notebooks which Ólafur kept that the days referred to in the letter are in November, not October, as this is in harmony with other information, entries in the spaces for the days 6 and 7 November 1968 being concordant with the substance of the letter, cf. the photocopy from the notebook in Court Exhibit No. 19. The a forementioned notebook of Ólafur Þórðarson was delivered to the undersigned attorney-at-law by his son, Jón Þórður Ólafsson, and the original will be presented in court if the defendant requests it. Further on, describing events on 6 November 1968, the letter states:"Before we left the studio, Kjarval wanted my opinion on asking the Municipal Gallery to store the stuff - I took a moment to think - looked at him and tried to assess him (his mood) - and said: Why not sort the things into new packaging and put everything in one place in the new house in the west of town, and then unpack it later - No, no, I can't stand the thought,he said. So I said - if you're happy with that - at the time I said I saw nothing against it - and on reflection perhaps this would be best. I saw it was no use trying another solution and he was so tired and unwell that hewould become even more depressed if he was expected to go through all th estuff - he doesn't have the strength - and each new item awakens new memories - perhaps a book never opened or a box of cigars from a friend now deceased. A Christmas cake, Christmas paper, etc."Towards the end, the letter says:"And as for you, I think you should take all this with the greatest serenity - and be thankful that you do not have to participate in the nerve-racking business of being in the midst of this turmoil."Ólafur Þórðarson was the only person related to the family of Jóhannes S.Kjarval who had direct relations with him regarding the clearing of the studio in Sigtún in the autumn of 1968. It is clear from Ólafur Þórðarson's letter that he thought the City ofReykjavik was only taking the objects in question into safekeeping, in order to prevent their going astray, with a reference made to a conversation with Kjarval on the subject. This position has also been confirmed in conversations that the undersigned has had with Ólafur's son, Jón Þórður Ólafsson. It is furthermore clear from Ólafur's letter to the artist's daughter, Aase, dated 11. November 1971, that he considered the objects to have been delivered for storage and safekeeping, cf. Court Exhibit No. 21. According to the letter of art historian Steinunn Bjarman to Kjarval, dated 10 January 1969, contained in Court Exhibit No. 16, the then Reykjavik CityArchivist Lárus Blöndal, had entrusted her with going through andclassifying the objects that had arrived from Kjarval's studio during thelast months of 1968.In this letter Steinunn says:"Last November Lárus Blöndal, City Archivist, entrusted me with goingthrough and classifying objects that the Archives received from you at thetime. The work procedure was as follows:
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Everything was taken out of all the boxes in which the objects arrived and duly vacuumed, dusted, washed or cleaned, as appropriate in each instance. The material was then classified, recorded and sorted into boxes. The boxes were then marked and taped, bound with string and sealed. Apart from myself, only two cleaning ladies have gone through the material and we haveall tried to handle it as gently as we could and avoided any prying into letters or other things. This work is now completed and I am sending you herewith a copy of the list which I drew up when putting the material in order. I hope that upon reading this list you will find that everything has been accounted for so far as possible. "The list referred to in the letter is contained in Court Exhibit No. 17. The first page of the list reveals that the total number of boxes sealed was 153, including 14 boxes of sketches and 56 boxes/cases of pictures and paintings. The list sets out in the main what objects were put into each box. The list has the following heading: "A list of the objects of Jóhannes S. Kjarval in the City Archives."It appears from Steinunn Bjarman's report, dated 12 March 1987, containedin Court Exhibit No. 30, that Jóhannes S. Kjarval had received the above-mentioned letter and list directly from Steinunn on 17 January 1969. The content of Steinunn Bjarman's letter to Jóhannes S. Kjarval cannot be seen as indicating that it was written to a man who had donated the objects in question; on the contrary. Furthermore, mention is made of Jóhannes S.Kjarval's items in the City Archives in the list she drew up. As is apparent from Steinunn Bjarman's letter, the boxes into which she put/packed Kjarval's objects were sealed as if for secure storage. Now here in these documents is there any mention of a donation. The a forementioned letter and list from Steinunn are the only contemporary documents deriving from the City of Reykjavik regarding the objects which were taken from the studio in Sigtún 7. These are also the only document semanating from the City of Reykjavik which were written to the artist after the objects listed had arrived in the keeping of the City of Reykjavik. In a memorandum dated 21 September 1982, Court Exhibit No. 27, by SupremeCourt Attorney Baldur Guðlaugsson, who was engaged to work for the heirs of Jóhannes S. Kjarval and Sveinn Kjarval, the attorney quotes Guðrún Kjarvalas saying she had made a telephone call to the then Mayor of Reykjavik GeirHallgrímsson, after having received news of the transport of Kjarval's things to the City Archives and that Geir had indicated that the objects were being taken into safekeeping. It seems clear that this conversation took place in November 1968, shortlyafter Guðrún had received news of the transport taking place. It is a fact that the defendant, the City of Reykjavik, does not possess any certificate of donation or other documents in support of its alleged title to the objects that the City received for safekeeping in the autumn of 1968 and that were initially moved to the Reykjavik City Archives. There is no entry regarding the alleged donation by Jóhannes S. Kjarval in the Minutes of the City Council (Borgarstjórn) or the City Executive Committee (Borgarráð), nor is it in any way registered as property of theCity.
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The daily Morgunblaðið, in its issue of 2 November 1971, Court Exhibit No.20, carried a news item to the effect that the City of Reykjavik had received a donation from Jóhannes S. Kjarval, stating initially:"The painter Jóhannes S. Kjarval has donated a large collection of drawings to the City of Reykjavik. City Advocate Páll Líndal told Mbl. [Morgunblaðið] yesterday that the volume of the collection had not been fully ascertained, but sorting the drawings and other work in this connection is underway."The article does not mention when the referred donation was made. On 3November 1971, Morgunblaðið publishes pictures of three of Kjarval's works stating that the artist had donated the pictures to the City in the autumn of 1968.The background for this public mention at that time is not clear but information on the state of health of Jóhannes S. Kjarval at the time clearly indicates that he was incapable of realizing the importance of it, if indeed he ever saw it.
No documentation has been produced from the period 1968 to 1982 containing statements on behalf of the City of Reykjavik or its representatives regarding the manner in which a declaration of donation was given. It was thus not clear during this period whether the City of Reykjavik was in possession of a donation declaration emanating from Jóhannes S. Kjarval. The documents presented indicate that the descendants of Jóhannes S.Kjarval felt, soon after the private settlement of the estate at death ofJóhannes S. Kjarval was completed in 1973, that the City of Reykjavik was not the legitimate owner of the objects which came into the custody of the City in the autumn of 1968. Regarding this, reference may be made to the fact that Sveinn Kjarvalcalled a public press meeting in the autumn of 1975 where he expressed the views he held on the subject. A further reference may also be made to a letter from Sveinn Kjarval to his son Jóhannes, dated 28 December 1976, and a power of attorney dated the same day, cf. Court Exhibit No. 22. In the course of the following years, Sveinn approached at least two lawyers regarding these matters. On 7 January 1981, Aase Kjarval Løkken, Sveinn's sister, signed a Power of Attorney issued to him, giving him her authorization to represent her regarding matters concerning the inheritance from her father, cf. CourtExhibit No. 23. Sveinn Kjarval died in February 1981 and thus did not live long enough to seek redress of the situation vis-à-vis the City ofReykjavik.
The above clearly denotes that Kjarval's descendants were not at all in agreement with the statements of the City of Reykjavik to the effect thatKjarval had donated to the City the objects which came into the City's custody in tha autumn of 1968. It has been further confirmed in conversations with the descendants of Kjarval's children that the matter weighed heavily on both Sveinn and Aase and that they felt they had been treated unfairly.
After Sveinn's death and through the good offices of art dealer GuðmundurAxelsson of the firm Klausturhólar, the attorney-at-law Baldur Guðlaugsson was engaged to investigate the legal status of the heirs of Jóhannes S. Kjarval and Sveinn Kjarval regarding the objects in question, which were in the custody of the City of Reykjavik. Due to the views [on these matters] which seem to have come to light in the course of the investigation by the attorney-at-law and which came to the notice of the City of Reykjavik, a meeting was held on the subject in the office of the Mayor of Reykjavik on 5 August 1982, attended by Davíð Oddson, then Mayor of Reykjavik, Geir Hallgrímsson, former Mayor, Jón G.Tómasson, then City Advocate and Alfreð Guðmundsson, former Director of the Kjarvalsstaðir Gallery.
A memorandum on this meeting is presented as Court Exhibit No. 24,confirmed by the initials DO, denoting the name of the then Mayor, Davíð Oddsson. This document constitutes the first written data emanating
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from the defendant setting out a discussion of the basis on which the City considers itself as holding a title to the objects in question in the present case.The reason for the meeting is described at the beginning as being that the heirs of Jóhannes S. Kjarval and the heirs of Sveinn Kjarval had, through the intervention of art dealer Guðmundur Axelsson of Klausturhólar,approached a lawyer in order to demonstrate that the City of Reykjavik had not received paintings, drawings and other objects as a gift from Kjarvalbut that these objects had merely been taken into safekeeping.The memorandum quotes Geir Hallgrímsson:"Geir Hallgrímsson said that these pictures along with other objects had been delivered to him by Kjarval on 7 November 1968, at Kjarval's instigation. There is no doubt in his mind but that this was a donation to the City, not subject to any obligation except that the City would have the pictures repaired and would have them on display in its buildings."These words of Geir Hallgrímsson do not set forth any direct statement regarding any alleged oral declaration of donation by Jóhannes S. Kjarval; rather, it seems to have been his own deduction that the fact that the City took the objects into its keeping meant that this was indeed a donation.
The memorandum does not quote any statement by Alfreð Guðmundsson on his position or knowledge of the coming into being of the City's alleged ownership of the items.It is disclosed that the City Advocate considers that the burden of proof lies with the heirs and that on this point it would be highly significantthat the matter had not been broached until almost ten years after the speech made by Birgir Ísleifur Gunnarsson, former Mayor, at the opening of Kjarvalsstaðir Museum, the speech having been published in the programme covering the opening and indicated that the City had acquired all the worksin question. Reference is also made to the fact that in the speech made by[Nobel prize winning author] Halldór Laxness at the opening it had also been noted that the City had had pictures "bequeathed" to it prior to Kjarval's death. The memorandum further states, in continuation of the discussion on Halldór Laxness' speech:"Some how he, this well-known friend of Kjarval, had had an indication about this. Most probably this has escaped the attention of Baldur Guðlaugsson."The deduction made on the basis of the mention in Halldór Laxness' speechof the alleged gift or donation does not hold water since already by this time a news item had appeared in Morgunblaðið, as is stated above, in addition to which the writer could of course possibly have received information on "the gift" from the City of Reykjavik. Considering events at the end of 1968 and the beginning of 1969 and Kjarval's health at the time,it seems rather unlikely that Halldór Laxness had had information regarding this from Kjarval himself. Furthermore one cannot but deduct from these words that when the meeting was held, those attending it had known about the conclusion or position of[attorney] Baldur Guðlaugsson, which was not in harmony with the view of the City of Reykjavik to the effect that what was involved was indeed a donation. At the end of the memorandum, the following is entered:"It was decided that Geir should try to contact Ragnar í Smára, who is now in hospital, and also Halldór Laxness, in order to obtain their confirmation. Otherwise, it was decided that the City Advocate should (now) contact Baldur Guðlaugsson and obtain information regarding the documentation he has in the case and make a thorough search of all the documents possibly to be found in the City's Archives."A hand-written annotation on the memorandum says:
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"Meeting 20/9 '82 with Supreme Court Attorney Baldur Guðlaugsson. General agreement that all documents likely to be found had now come to light. Baldur said he would inform his clients of the situation and then let the City know about the continuation."The handwritten text also carries the initials DO in confirmation. The summary drawn up by attorney-at-law Baldur Guðlaugsson appears in a memorandum dated 21 September 1982, the day after the above-mentioned meeting with the Mayor. One can therefore assume that the documents and information which the attorney refers to were available at the meeting with the Mayor.
He begins by mentioning the documents he investigated and the persons hecontacted regarding the matter. No contact was made with Halldór Laxness nor with Ragnar í Smára, to whom reference had been made at the meeting on 5 August 1982. It has also come to light that there do not exist any confirmations from the referred parties in accordance with the plan set out in the memorandum from the meeting on 5 August 1982.
According to the attorney's summary, the City of Reykjavik bases its title on the view that the transfer of ownership to the City had taken place through an oral declaration of donation by Kjarval to the Mayor on 7 November 1968. It now happened/occurred that in verification of that statement, a written attestation by Alfreð Guðmundsson was presented, confirmed by his initials, dated 18 September 1982, stating as follows:"I was present on 7 November 1968 at Sigtún 7 when Jóh. S. Kjarval formally announced to Geir Hallgrímsson his donation to the City of Reykjavik. I summoned Geir to come to this place at the request of Kjarval, who earlier had told me that he intended to hand over to the City of Reykjavik (certain) works of art and other objects as a gift."Geir Hallgrímsson himself seems not to have been able to attest to such aformal declaration, either at the meeting on 5 August 1982 or in talks with the attorney.The summary quotes Geir Hallgrímsson as follows:"Geir Hallgrímsson, former Mayor, says he is convinced that this was indeed a donation, but he does not remember how it came about. Geir said that J.Kj. had been concerned that his works and objects should not be dispersed more widely than was already the case and that he therefore wanted the Cityof Reykjavik to acquire the said objects and keep them at Kjarvalsstaðir,which he had taken to his heart. Geir felt that J. Kj. had not wanted the donation to be publicized and this was why no entry had been made of this in minutes of the meetings of the City's Executive Committee, as suchminutes were public documents."This summary does not contain any statement by Geir Hallgrímson regarding an oral declaration of donation by Jóhannes S. Kjarval on 7 November 1968.
Furthermore, it can hardly be seen how Geir Hallgrímsson's statement tothe effect that Jóhannes S. Kjarval had not wanted "the donation" to be made public, is compatible with the news item which was published inMorgunblaðið at the beginning of November 1971, which already has been mentioned.
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The conclusion drawn by attorney Baldur Guðlaugsson was that he consideredit likely that the courts would find it fully demonstrated that Jóhannes S.Sveinsson (sic) had donated and made over to the City of Reykjavik the objects in question on 7 November 1968. He also considered it possible that, in the event that a court might regard the act of donation as not being successfully proved, it would conclude that the City of Reykjavik had acquired title through custom. In the opinion of the plaintiff, the conclusion reached by the attorney does not stand up, as indeed it is entirely unclear on what premises the assertions of the beneficiary can be used as a basis in this matter. According to documents obtained, the next time these objects came up for discussion by the City of Reykjavik was in a letter from Þóra (Thora) Kristjánsdóttir, former artistic consultant of Kjarvalsstaðir, dated 4 November 1985, to the Reykjavík City Executive Committee, in Court ExhibitNo. 29, discussing the objects in question; this states at the beginning: "The City of Reykjavík's Kjarval Collection was discussed at a meeting ofthe Board of Kjarvalsstaðir, held on 1 November 1985. The reason for this is that the huge collection of drawings, letters, books and personal item swhich Kjarval bequeathed to the City of Reykjavík in 1968 and which has been kept in sealed boxes at Korpúlfsstaðir until this summer, was moved to Kjarvalsstaðir and briefly inspected. A very small part of this donation is now on show at the exhibition Kjarval Centenary (Aldarminning), at Kjarvalsstaðir, but the main part of the collection is still unregistered and awaits further study and restoration work in the basement of Kjarvalsstaðir." Following on from this, Steinunn Bjarman was engaged to work on the cataloguing of these objects and this work lasted through out the years 1985, 1986 and 1987. Regarding the handling of the objects which came into the custody of the City of Reykjavík during the last months of 1968, reference may be made to the report of Steinunn S. Bjarman, dated 12 March 1987, in Court ExhibitNo. 30: Regarding the background to the case, Steinunn says in the opening chapter of the book:"I think it was in the latter part of October 1968 that I noticed that in one of the corridors of the City Archives there were two or three boxes containing various articles and on top of them were some hats, which I recognized as being Kjarval's. There was no time to investigate the reason for this, since there was an abnormal amount of work to do in the City Archives during the days in question. The City Archivist at the time was Lárus H. Blöndal, who had taken over the job from Lárus Sigurbjörnsson thea utumn before. Shortly afterwards, more boxes similar to the ones I had already seen started arriving. Lárus H. Blöndal told me they came from Jóhannes Sveinsson Kjarval. Lárus asked me to undertake the job, during the following weeks, of inspecting the contents of these boxes and putting them into storage."Later it says:"The boxes containing the objects were of all sizes and shapes and in general much the worse for wear. I therefore ordered new boxes, whereupon the sorting started, on 6 November 1968."According to this, it is clear that Steinunn had already received instructions and started work on packing objects in the possession ofJóhannes S. Kjarval prior to 7 November 1968. It is stated that Steinunn had received boxes coming from Kjarval until December 1968 and that the packing of the last batch was completed on 18 December that year. According to this, Kjarval's objects had been arriving in the City Archives from the last days of October 1968 and until December.
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After the turn of the year 1968/69, Steinunn said, she had typed out a list
of the objects and delivered this to Kjarval [himself] along with a letter
as already related. On 17 March 1969, Kjarval's objects were placed in the Archives in an
orderly arrangement and they remained there until 7 July 1970, when the
boxes were transferred into storage at Korpúlfsstaðir. The boxes were then left untouched until the summer of 1971, when the boxes
marked "Pictures and paintings" (Myndir og málverk) were opened and the
contents inspected.The report discloses that Steinunn did not have anything further to do with
this matter until the year 1985, when she was asked to sift through those
boxes containing objects from Kjarval which she had packed in November and
December 1968.
According to Steinunn's register/list, which she drew up in 1985-86, the
pictures or paintings which arrived from Sigtún 7 during the period stated
earlier totalled 5.062 separate items. No further action was taken in the matter
on behalf of the descendants of Jóhannes S. Kjarval until 2000, when
Ingimundur Kjarval, son of SveinnKjarval and Guðrún Kjarval, hired
a lawyer to investigate the family's legal position regarding these objects.
On that occasion, the lawyer sent an enquiry to the City Advocate as to the basis on which the City founded its alleged right of ownership.
This led Eiríkur Þorláksson, Director of Kjarvalsstaðir, to seek the aid of the Reykjavík City Archives. In a letter dated 16 May 2001, contained in Court Exhibit No. 31, it seems that among city officials it had been generally assumed that Geir Hallgrímsson, then Mayor, had received a Letter of Donation in 1968. In the letter written by Hjörleifur Kvaran, then City Advocate, dated 22 October 2001, to Ingimundur Kjarval, contained in Court Exhibit No. 34, it is stated that the City of Reykjavík did not insist on receiving Letters of Donation from artists who donate works of art to the city, such a procedure being considered inappropriate.
This explanation is probably put forward in support of it having been natural for the City of Reykjavík not to insist upon a documented confirmation from Jóhannes S. Kjarval regarding the alleged donation.
No information is to be gleaned from either the memorandum on the meeting in the Mayor's office on 5 August 1982 nor in Supreme Court Attorney BaldurGuðlaugsson's summary dated 21 September 1982, in the part dealing with information or explanations forthcoming from former Mayor GeirHallgrímsson, regarding the reasons for his not having insisted that Jóhannes S. Kjarval confirm his donation on 7 November 1968 in writing.
The circumstances of this case must in many ways be considered quite unique, even if only for the number and value of the works involved, in addition to which this comprised almost all the artist's worldly possessions.
In assessing the situation regarding proof, one must consider the fact that the artist was at the time in question, suffering from substantial and worsening senility, and thus there was even greater reason to make all arrangements in a formal and secure manner in order to ensure that there could be no doubt as to his will and purpose regarding the measures taken.
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The explanation that Jóhannes S. Kjarval might have found it inappropriate or too complicated to issue written declarations as to his will and intentions must be considered far-fetched.
It might be mentioned that in September 1966 Jóhannes Kjarval wrote a donation letter covering the property Einarslón on Snæfellsnes peninsula,which had come into his possession through a deed in 1945, cf. CourtExhibit No. 39.
Furthermore, it is disclosed on page 311 in the second volume of Kjarval's biography that in the autumn of 1968 Kjarval wrote the following letter to Björn, the owner of Ketilsstaðir in the district of Hjaltastaðaþinghá, where Kjarval had built himself a small house at a site known as Hvammur:
"Herewith I send you by this letter my fond regards and the key to Hvammur. Even though no brook burbles there, Hvammur is a cheerful and happy place. Good-bye to all of you, bairns and Björn alike."
One cannot conclude from this that Kjarval found it inappropriate or too
complicated to express himself in writing on measures he took
regarding hispossessions. It is argued on behalf of the plaintiff that the
burden of proof regarding an act of donation and its content resides with the alleged beneficiary. It should therefore be fundamental in this case that the burden
of proof lies with the defendant, the City of Reykjavík, which must prove that painterJóhannes S. Kjarval, did indeed, by an oral declaration on 7 November 1968, state in a binding and conclusive manner that the objects which at the time were to be found in his studio at Sigtún 7 and those which earlier had been transferred from it, should become the property of the City of Reykjavík, without any recompense being due to him. With reference to the foregoing discussion of the matter and the documents presented, it must be considered that the City of Reykjavík has by no means managed to prove the existence of such a declaration, and indeed the statements of the representatives and employees of the beneficiary itself cannot be considered valid evidence in this regard. Neither is there other information to support such statements.
No solid evidence exists proving or confirming the statements of the City of Reykjavík regarding its right of ownership.
As a public body, the City of Reykjavík was under a very powerful obligation to establish securely and have confirmed in writing, the purposeof the owner, Jóhannes S. Kjarval, in granting the City the custody of the said objects.
This obligation was particularly binding as nearly all the artist's worldly possessions were involved and it was known that he had statutory heirs still alive, in addition to which consideration of his age and health should have made it
obligatory to have any legal act executed in a formal manner.
In particular, it is argued that the evidence available from the time when the transfer of custody of the objects took place, do not in any way corroborate the
defendant's statements; quite the contrary, as has been described above.
Most important in this aspect is the fact that the documents
addressed to Kjarval himself from Steinunn Bjarman and which he received, do not in any way deal with the transfer of title or a donation; on the contrary, they support the idea that the objects had been accepted for safekeeping. In the documents in the present case the idea has been broached that the City of Reykjavík might have acquired a legal title to the objects which came into the custody of the City in the autumn of 1968 by custom, if itwas not considered proved that they had been donated in the first place.
Regarding this, it is pointed out, firstly, that on behalf of the City of Reykjavík, in its answers to the plaintiff, no mention was made of the acquisition of title by custom; it would hardly be appropriate for a public body to resort to such reasoning against the heirs and the estate at death.
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It is also argued on behalf of the plaintiff that acquisition of title through custom is immediately excluded because, under Art. 2, par. 3 of the Acquisition of Title through Custom Act (Hefðarlög) No. 46/1905, custody which comes into being through storage can not authorise title by custom.
It is clear in this case that if it is not demonstrated that a donation was made, then the delivery of the said objects can only have been for the purpose of storage.
It is also argued that the City of Reykjavík cannot be considered as fulfilling the subjective conditions for title to possessions based on custom, as it was at least clear that its representatives knew or might be expected to know the position of the heirs prior to the earliest time when the period necessary to establish possession through custom could be considered to have elapsed. Failure to exercise a legal right can not result in the transfer of title by other means than by custom and thus the length of time that elapsed since the handing over of the objects in question took place is of no consequence. According to the foregoing, it is argued that the estate at death ofJóhannes S. Kjarval is still the legitimate owner of the objects which were removed from his studio at Sigtún 7, Reykjavik, in October and up to December 1968 and which are now in the custody of the defendant. Thus the claims submitted by the plaintiff for the recognition of ownership and restoration of the objects should be accepted, it being only right and due that they be included in the estate settlement so that a legitimate and unambiguous transfer of title can take place, with, of course, payment of legally prescribed inheritance tax in relation to them. Reference to principal legal sources: Regarding the plaintiff's status as a party to the case, reference is made to the Act No. 20/1991, cf. in particular Art. 85, par. 2 and Art. 95, par.2, as well as Art. 155.
Reference is also made to the Inheritance Act No.8/1962. The plaintiff bases its demands on the general rules of property law and owner's right to custody. Reference is made to the general rules of contract law regarding promises of donations and proof there of. Reference is made to the Act No. 46/1905 on custom. Regarding the plaintiff's claim for recognition, reference is made to Art.25, par. 2 of the Code of Civil Procedure, No. 91/1991. The claim for per diem fines is based on Art. 19, par. 4 of the Act No.20/1991 and the principal rule of that provision and to precedents in cases where demands have been made regarding the performance of obligations not involving the payment of specific sums. The plaintiff's claim for legal costs is based on Art. 129 and 130 of the Act No. 19/1991. The plaintiff is not a party under a legal obligation to pay value-added tax according to the Act No. 50/1988 and thus the tax must be taken into consideration when defining the legal costs. Court Exhibits: On registration of the case, the plaintiff intends to present the following pieces of evidence:
No. 1 The present summons.
No. 2 List.
No. 3 Registration by the City of Reykjavik of works of art byJóhannes S. Kjarval, marked K-0001-5301, taken from the studio at Sigtún 7, Reykjavik in 1968.
No. 4 Registration by the City of Reykjavik of works of art by other artists, taken from the studio at Sigtún 7, Reykjavik in 1968.
No. 5 Registration by the City of Reykjavik of various objects taken from the studio at Sigtún 7, Reykjavik in 1968.
No. 6 Registration by the City of Reykjavik of books taken from the studio at Sigtún 7, Reykjavik in 1968.
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No. 7 Letter from Eiríkur Þorláksson, Director of the ReykjavikArt Gallery, to the City Advocate, dated 26 August 2004.
No. 8 Letter from the City Advocate to the plaintiff's attorney, dated 1 September 2004.
No. 9 Letter from the plaintiff's attorney to the City Advocate(Reykjavik City Advocate), dated 16 July 2004.
No. 10 Letter from the City Advocate, dated 8 July 2004.
No. 11 Letter from the plaintiff's attorney dated 20 June 2004.
No. 12. Letter from the Reykjavik District Commissionerdated 6 February 2004
No. 13 Request for a reopening of the private settlement of estate,dated 19 November 2003
No. 14 License for a private settlement of estate,dated 18 April 1972.
No. 15 Inheritance tax report, dated 1 April 1973.
No. 16 Letter from Steinunn Bjarman to Jóhannes S. Kjarval,dated 10 January 1968.
No. 17 List of the objects belonging to Jóhannes S. Kjarval in theReykjavík City Archives, drawn up by Steinunn Bjarman.
No. 18 Letter from Ólafur Þórðarson to Sveinn Kjarval,dated 10 October (November) 1968.
No. 19 Photocopy from Ólafur Þórðarson's notebook from 1968(made over by his son).
No. 20 Photocopy of an article appearing in Morgunblaðið, 2. Nov. 1971.
No. 21 Copy of Ólafur Þórðarson's letter dated 10 November 1971,together with a photocopy from Morgunblaðið of 3 Nov. 1971.
No. 22 Letter from Sveinn Kjarval, dated 28 December 1976,with a copy of a power of attorney.
No. 23 Power of attorney dated 7 January 1981.
No. 24 Memo of a meeting in the Mayor's office on 5 August 1982.
No. 25 Alfreð Guðmundsson's declaration, dated 18 September 1982.No. 26 Photocopy from Alfreð Guðmundsson's diary.
No. 27 Baldur Guðlaugsson's memorandum, dated 21 Sept. 1982.
No. 28 Letter from Senior Physician Hannes Pétursson,dated 14 June 1985
No. 29 Þóra Kristjánsdóttir's report to the City Executive Committee,dated 4 November 1985.
No. 30 Steinunn Bjarman's report, dated 12 March 1987.
No. 31 Copy of correspondence from Soffía Kjaran, dated 16 May 2001.
No. 32 Record of a telephone conversation with SvanhildurBogadóttir, City Archivist, dated 30 May 2001.
No. 33 Record of a telephone conversation with Eiríkur Þorlákssondated 1 June 2001.
No. 34 Letter from City Advocate Hjörleifur B. Kvaran, dated 27June 2001 with attachments/enclosures.
No. 35 Letter from City Advocate Hjörleifur B. Kvaran, dated 22October 2001
No. 36 Summary from Kjarvalsstaðir of "The Kjarval Donation".
No. 37 Photocopy from the newspaper DV 22-23 June 1994(charcoal drawings).
No. 38 Photocopy from the biography of Jóhannes Sveinsson Kjarval,volume II, pp. 301-317.
No. 39 Copy of Kjarval's letter dated 14 September 1966.
No. 40 Survey of Kjarval's life and artistic career.
No. 41 Statement by Guðrún Kjarval, recorded on 22 September 2003.
No. 42 Power of attorney granted by Guðrún Kjarval,dated 22 September 2003.
No. 43 Power of attorney granted by Mette Stiil, dated 5 November 2003.The right is reserved to present further evidence.
Testimony: On behalf of the plaintiff, the right is reserved to call parties and witnesses. The plaintiff will give further details on the hearing of testimony when the defendant has presented its defence.
Summons: Consequently, Steinunn Valdís Óskarsdóttir, ID-No. 070465-5239, Rauðalæk23, Reykjavík, Mayor, on behalf of the City of Reykjavik, Reg. No. 530269-7609, Reykjavik Town Hall, is hereby summonsed to appear att he registration of the present case in the Reykjavik District Court,courtroom 102, in the Courthouse at Lækjartorg, Reykjavik, on Tuesday 19 April 2005 at 10:00, in order there and then to see documents and evidence presented to the court, hear the prosecution of the case and present her defence. If no appearance is made on behalf of the defendant, it is to be expected that the demands of the plaintiff will be accepted as they are presented. The minimum period between the service of the summons and the registrationof the case is three days.
Reykjavik, 15 April 2005 on behalf of the plaintiff, Kristinn Bjarnason Supreme Court Attorney