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Filings fly in estate dispute; battle for photographer’s vintage negatives pits kin, museum

by Bill Bowden | August 1, 2021 at 9:06 a.m.
FILE — Peter Miller tells the story Tuesday of the subjects of one of the Mike Disfarmer prints hanging in his Little Rock office in this Aug. 23, 2005 file photo. (Arkansas Democrat-Gazette/STATON BREIDENTHAL)

After a flurry of court filings last week, sides fighting over Mike Disfarmer's negatives have retreated to their respective corners.

For now.

Disfarmer was an eccentric Heber Springs photographer who died in his studio in 1959, more than a decade before he was discovered by the art world.

Now, 62 years after his death, there's a battle over his estate.

And a pause.

On Thursday, an unopposed motion to continue was filed in Cleburne County Circuit Court, so a hearing scheduled for Tuesday won't happen, according to Fred Stewart and John Tull, both of Little Rock.

Stewart is the great-great nephew of Disfarmer. He represents a group of Disfarmer relatives who say the contents of his studio -- including about 4,000 glass negatives -- weren't part of the probate administration of his estate.

Tull is an attorney representing the Arkansas Museum of Fine Arts Foundation, which received 3,000 glass Disfarmer negatives as a donation in 1977, when the Little Rock museum was known as the Arkansas Arts Center.

Disfarmer's black-and-white portraits of Arkansans were heralded by art critics after they were revealed to a wider audience in the 1970s, first in the pages of Modern Photography magazine and later in a book titled "Disfarmer: The Heber Springs Portraits, 1939-1946."

"Mike Disfarmer's direct, full-figure frontal portraits of residents of an Arkansas town are echoes of the sort of pictures made in the last century," Peter Bunnell wrote for The New York Times in December 1976. "They are not nostalgic but haunting, suggesting daguerreotypes of strangely familiar yet unknown relatives."

"The works of Mike Disfarmer, a small-town portraitist from Arkansas whose style-less pictures of small-time cotton farmers and their families, taken during the years of the Second World War, can stand comparison with the works of August Sander, Diane Arbus and Irving Penn," Gene Thornton wrote for the same newspaper a couple of weeks later.

When Disfarmer died, he left no wife, no kids and no will.

Thousands of Disfarmer's negatives have recently been "discovered" so the estate should be reopened to determine who is the rightful owner and who should receive proceeds from their copyright, according to Stewart's petition to reopen the estate. He asked the judge to appoint him as special administrator of the estate.

But Stewart's learning the negatives exist doesn't mean they've been "discovered" in the legal sense of the word, wrote Tull.

"No property of the Estate has been 'discovered' within the meaning of the probate code, and therefore no just cause exists for this Court to reopen the Estate," Tull wrote in court filings.

Tull argues that the negatives were administered during the original probate case: All 4,000 of them were sold for $5 to Joe Allbright, who later sold them to Peter Miller, who later donated them to the foundation through an entity known as The Group Inc.

The $5 deposit in December 1959 shows up as a line item in the estate's account ledger at Arkansas National Bank in Heber Springs.

The total of $18,146.80 in the bank account was divvied up -- after claims, taxes and fees were paid -- among Disfarmer's three surviving siblings and the children of his other three siblings. All six siblings are now deceased.

The $5 Allbright paid for the negatives was included in the $18,146.80 distributed to Disfarmer heirs after his death, according to Tull.

Miller, a Little Rock attorney who now lives in South Carolina, said he spent considerable time and money restoring and preserving the negatives. Bacteria was devouring the animal-gelatin emulsion on many of the negatives, which had been stored for over a decade in Allbright's garage. According to filings from Miller in the court case, about 1,000 of the negatives couldn't be salvaged and were discarded.

The museum has spent hundreds of thousands of dollars restoring and preserving the negatives, according to Tull.

COURT FILINGS

Fred Stewart filed his petition to reopen in January. After some continuances, in May, a court date was set for August to hear arguments.

On July 14, Tull filed an objection to Stewart's petition to reopen the estate. Among other things, Tull wrote that Stewart isn't an heir or "interested party" under Arkansas Code Annotated 28-1-102(a)(10-11), and therefore lacks standing to petition the court.

"The probate code defines an 'interested person' as 'any heir, devisee, spouse, creditor, or any other having a property right, interest in, or claim against the estate being administered, and a fiduciary,'" wrote Tull. "Mr. Stewart claims to be an 'heir' of the Estate. An 'heir' is "a person entitled by the law of descent and distribution to the real and personal property of an intestate decedent, but does not include a surviving spouse."

Stewart's mother, Ellen, might be an heir because she has a closer familial tie to Disfarmer and is still living, according to the court filing.

On Monday, an amended petition was filed to reopen the estate on behalf of Ellen Lorene Stewart of Little Rock and her son, Fred Stewart.

Tull filed an objection to that petition as well.

"Ms. Stewart says that the property at issue in her petition is recently discovered, but, in fact, it was discovered and sold by the Estate's administrator almost 60 years ago," Tull wrote in a brief supporting his objection. "No claim was made then that the administrator acted outside of his authority to handle the Estate's affairs, and no such claim can be made today. Mr. Disfarmer's family entrusted the administration of the Estate to third parties who performed their duties in accordance with the law and under the watchful eye of the probate court of Cleburne County. There is nothing else for this Court to do."

Little Rock attorney Grant Fortson, representing the Stewarts, filed motions asking the court to strike Tull's objections.

It's the Arkansas Museum of Fine Arts Foundation that isn't an "interested party" under the state statute, wrote Fortson.

"The Foundation is not a creditor of the Estate and it does not have a property right, interest in or claim against the Estate," according to the motion. "Rather, the Foundation holds property that it anticipates a special administrator will seek to obtain from it. The Foundation is a stranger to the Estate, and the fact that it anticipates that a special administrator may inquire whether it holds property of the Estate does not give it standing to object to a petition to reopen the Estate or for the appointment of a special administrator."

The foundation didn't even exist until 1972 -- 13 years after Disfarmer died and 11 years after the order closing his estate, wrote Fortson in a brief supporting his motion.

In a filing on Thursday, R. Ryan Younger, another attorney representing the arts museum, argued that the foundation is an "interested person within the meaning of the probate code by reason of its right and interest in the property" that the Stewarts claim belongs to the Disfarmer estate.

In his brief, Younger asked the court to deny the motion to strike the museum's objection.

"Should this Court find that the Foundation is not an interested person within the meaning of the probate code, it should nevertheless hear and consider the Foundation's objection because the Foundation may intervene in this matter under Rule 24 of the Arkansas Rules of Civil Procedure," wrote Younger.

On Thursday, Fortson filed a motion asking for a continuance.

"Petitioners and the Foundation wish to postpone the hearing so that the parties can prepare for the hearing and engage in negotiations concerning the Objections and the Motions to Strike the Objections," he wrote in Thursday's filing.

Originally named Mike Meyers, the photographer legally changed his name to Mike Meyer Disfarmer in 1939 in what appears to be an attempt to distance himself from his family at the time.

Believing that "meyer" meant farmer in German, he changed his name to Disfarmer, according to court records.

Some of Disfarmer's photographs can be seen at https://bit.ly/3xfYEog.

Print Headline: Battle for photographer’s vintage negatives pits kin, museum

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