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Wednesday, December 6, 2023
Courthouse News Service
Wednesday, December 6, 2023 | Back issues
Courthouse News Service Courthouse News Service

Collector Wins Rights| to ‘Cry’ Sculpture

(CN) - A half-ton sculpture by the late cubist Jacques Lipchitz does not belong to the estate of Lipchitz's widow because she gave it to a boyfriend, the New York Court of Appeals ruled.

Lipchitz created a 1,100-pound bronze statue called "The Cry" in the late 1920s. After the Russian-born artist's death in 1973, his 62-year-old widow, Yulla Lipchitz, inherited this work and many others.

Yulla's son from her first marriage, Hanno Mott, loaned the sculpture to France in 1998 where it was part of a modern art installation at the Tuileries Gardens near the Louvre Museum in Paris.

But ownership of "The Cry" came into question when Yulla Lipchitz died in 2003.

Biond Fury, a man the widow had been living with for the last 17 years, produced a photograph of "The Cry" inscribed with a handwritten message from Yulla:

"I gave this sculpture, 'The Cry' to my good friend, Biond Fury in appreciation for all he did for me during my long illness. With love and warm wishes for a Happy Future, Yulla Lipchitz/Oct. 2, 1997, New York."

Mott said he did not know about his mother's gift when he loaned the sculpture. He claimed that Marlborough International Fine Art Establishment paid $1 million for it and three other sculptures in 2004.

Fury sold his interest in "The Cry" to Toronto art collector David Mirvish in 2005 for $200,000.

Mott sued Fury in Manhattan Surrogate's Court for a determination of the sculpture's ownership. Mirvish then sued Mott in the same court for replevin and conversion, seeking possession of the artwork.

Ruling that Yulla had mad a valid gift to Fury, the surrogate court found that "The Cry" rightfully belonged to Mirvish.

That decision unraveled on appeal, however, with a court ruling that the statute of limitations barred Mirvish's claim because "The Cry" was not converted any later that its loan to the French government in 1998.

That decision set up a showdown in the state's highest court, the Court of Appeals.

"Mirvish has established each of the elements of a valid inter vivos gift - intent, delivery and acceptance - by clear and convincing evidence," Judge Susan Phillips Reid wrote for a unanimous seven-member panel.

"The surrogate rightly concluded that Yulla made a valid inter vivos gift of 'The Cry' to Fury, who sold his interest in the sculpture to Mirvish," she added.

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