On September 13, 1968, Rothko signed a will that named the Mark Rothko Foundation, Inc.—a charity—as the primary beneficiary of his estate. Rothko appointed the following as executors of his will and estate: Bernard J. Reis (1895–1978), a certified public accountant who had for years acted as the artist’s financial advisor; Theodoros Stamos (1922–1997), a painter; and Morton Levine (1922–1982), a professor of anthropology. All were close friends of his at the time.
Rothko died by suicide in his New York studio on February 25, 1970. His will was entered into probate on April 27, 1970. On May 21, 1970, Reis, Stamos, and Levine, in their capacity as executors of Rothko’s estate, signed a two-part contract with Marlborough A.G., a Liechtenstein corporation with numerous international galleries, and Marlborough Gallery, Inc., its New York affiliate, for the sale and consignment of 798 paintings on canvas and paper in Rothko’s estate. Marlborough had been Rothko’s dealer since 1963.
The two-part contract of May 21, 1970, detailed the outright sale of 100 paintings on canvas to Marlborough A.G. for a total of $1.8 million, of which $200,000 was paid up front to the artist’s estate, while the remaining $1.6 million was to be paid to the estate in equal interest-free annual installments over twelve years beginning on June 1, 1971. An additional 698 works on canvas and paper were consigned to Marlborough Gallery, Inc., New York
. The gallery was permitted to sell as many as 35 works per year from each of two chronological periods, pre-1947 and post-1947, over the following twelve years at an above-market commission rate of 50 percent per work (40 percent on works sold to or through other dealers).
In November 1971 the artist’s twenty-year-old daughter, Kate Rothko, filed a lawsuit that initiated proceedings against the three executors of her father’s estate, Marlborough A.G., and Marlborough Gallery, Inc., New York. The proceedings commenced in Surrogate’s Court, New York County, where they were overseen by Surrogate Millard L. Midonick. Kate was joined in her complaint by the guardian of her then seven-year-old brother, Christopher. Their petition sought a rescission of the two-part contract of May 21, 1970, between the executors of Rothko’s estate and Marlborough A.G. / Marlborough Gallery, Inc., New York; restitution of the 798 paintings sold or consigned to the galleries; and the removal of the executors on grounds of conflict of interest, collusion with Marlborough, and wasting of assets of the estate.
The trial began on February 14, 1974, and lasted eighty-nine days. On December 18, 1975, New York County Surrogate’s Court ruled against the executors, ordering their dismissal and appointing Kate Rothko as the estate’s sole administrator. The two-part contract of May 21, 1970, was rescinded, and Marlborough was ordered to return to the estate 658 paintings that had not been sold to bona fide (non-party) purchasers. The surrogate found Reis, Stamos, and Marlborough A.G. / Marlborough Inc., New York, jointly liable for a total of $9,252,000 in damages and fines, the bulk of which was determined by the market value of paintings sold; Levine was found liable for a share of a lesser amount. The ruling also dictated the distribution of the estate. Because the children had inherited what was determined to be one-ninth of the works by their father through their mother’s estate in 1970, the surrogate directed that four-ninths of the remainder of the estate would go to the children and five-ninths to the Mark Rothko Foundation
, resulting in each party receiving an equal share of the total estate [see Estate of Rothko, 84 Misc. 2nd 830, 379 N.Y.S.2nd 923 (Sur. Ct. 1975)].