THEATTORNEY GENERAL

OF -XAS

Honorable Wm. A. Nobles OpinionNo. ~~-1058 CountyAttorney of Wise,County Decatur, Texas Re: Whether funds derived from a mineral lease
on land deeded to the County Judge of Wise County for use as a cemetery~maybe used by the Commissioners Court of Wise County for general countypurposes. Dear Mr. Nobles:

question:You have requested an opinion on the following

'Isthe beneficial ownership of theminerals under a three-acre tract conveyed to the County Judge of Wise County, and his successors in. office, for cemeterypurposes only, and the funds resulting from a lease of said minerals, vested in Wise County, and the funds subject to expenditurefor general countypurposesunder the direction of the CommissionersCourt,
or does suchmineral estate, and the funds derived therefrom, constitutea trust fund for the sole benefit of the Done Star Cemetery, to be controlled and expended by the County Judge as a trustee?"

The three-acre tract in question is situated in the Lone Star community in Wise County and Is known as the Lone Star Cemetery. The exact date on which this tractwas first used as a cemetery Is unknown, but dateslnscribedon‘tombetones go back as far as the 1870's. Since 1890 it has been contlnuously used and is still In use as a public cemetery. Prior to 1914 therehad been no formal Instrumentof dedicationor conveyance of the tract for cemeterypurposes, but several deedsbetween 1891 and 1910 conveying the parent tract of landHonorable Wm. A. Nobles, page 2 (~-1058)

containedan exception clause following the description, in substantially similar teys, as follows: I'save and except 3
acres used for cemetery. About 1910 the descriptionwas redrawn so as to exclude the cemetery tract, and succeeding conveyancesutilize the new descriptionrather than describing the parent tract and excepting the cemeteryportion. In 1914 the grantor In the 1891 deed, inwhich theparent tract
was conveyed to a thirdparty but the cemetery tractwas reserved, conveyed the cemetery tract to the County Judge of Wise County and his successorsby a deedwhich reads as follows (omittingformalparts):

"Knowall men by thesepresents, That J. W. Monk of the County of Wise and State of Texas, for and In considerationof the
sum of one dollar, tome paid by the County Judge of Wise County Texas the receipt of which is hereby acknowledgedhave granted, sold and conveyed,and by these presents do grant, sell and conveyunto the said County Judge of the County of Wise and State of Texas, all that certain tract of land being
a squareblock of 3 acres out of southwest
corner of a tract of landheretofore conveyed by me to my son Willis Monk land conveyedherein being for Cemeterypurposes only and when failed to be used for thatpurpose it is to revert to grantor herein this landbeing out of the Willis Monk Survey. To have and to hold the above describedpremises, togetherwith all and singular the rightsand appurtenances thereto In anywise belongingunto the said County Judge and his succesors,heirsand assigns forever. And I do,herebybind myself,heirs, executorsand administrators, to warrant and forever defend,all and singular the said premisesunto the said County Judge and his successors,heirs and assigns, against every person whomsoever lawfully claiming or to claim the same~or any part thereof." Adjoining the cemetery are two other small tracts, each containingabout an acre, one being the "LoneStar School" tract and the other the %one Star Baptist Church" tract. In about 1955 oil leaseswere taken on all three tracts. A producing oil well was completed on the school tract, and all three tractswere formed into a~producing unit. The ownership of the minerals In the cemetery tractHonorable Wm. A. Nobles,page 3 (~~-1058)

and of the funds derivedunder this lease in your opinion request. Is the matter involved

We assume for thepurpose of this opinion that the production of oil from the adjoining tract does net interfere with use of the cemetery tract as a burial place. No question Is raised as to the right to lease the tract or as to the effect of the leasing on the provision in the deed for reversion of the land to the grantor upon failure to use it for cemetery purposes.Although the 1914 deed doesnot expresslyuse words of trust,we think it is clear beyond doubt that the conveyance was to the County Judge and his successorsas trustee for the benefit of those entitled to be buried in the cemetery. 42 Tex. Jur., Trusts, Sec. 16; 4 Scott, Law of Trusts sec. 151: Smallwoodv. Midfield Oil Co., 89 S.W.2d 10862nd Ed;),

---
_ ___I --------~~ - ~~~~ (Civ. App. 1935). The County Judge hold1 FZiiZ legal title only as a trustee,and the beneficial ownership extendsnot only to the surface-of the ground but to the entire estate. Houston Oil Co. v. Williams, 57 S.W.2d 380 (Clv.App.1933);Davis v. Skipper, 129 Tex. 3b4, 63 S.W.2d 318 (1935).

Any claim that Wise Countyhas in theproperty and in the proceeds from themineral leasewould have to be based
on the theory that the legal titlewas conveyed to the County Judge for the benefit of Wise County as a political subdivision. In our opinion, the fact that the County Judge of Wise County
was named as the grantee did not vest any beneficial interest In Wise County. Unless the trust as originally declaredwas for the benefit of Wise County as a political entity, the fact that one of Its officers Is the trustee does not give it any Interest or right in the property. It Is not uncommon for a public officer and his successorsto be named as trustee of property devoted to a continuingpublic or charitableuse. The naming of a public officer in a conveyanceof this type is a convenientmeans for vesting of the legal title and for providing a succession in the title. An example of such a conveyance is found In Scott v. Sterrett, 234 S.W.2d 917 (Clv. App. 1950, error ref. n.r.e.). In our opinion, the County Judge is not trustee Inhis official capacitybut in his private and individual capacit Inglisv. Trustees of the Sailor's Snu Harbor, 3 Pet. ( 8' U.S.) 99 (1630);In re Sturgls, lb4 N.Y 48,: 58 N.E. 646 (1900). Court said: In the Inglls case the

'Inthe case now before the court there Is no uncertaintywith respect toHonorable Wm. A. Nobles,page 4 (WW-1058)

the individualswho were to execute the trust. The designation of the trustees by their official character is equivalent to naming them by their proper names. Each office referred to was filledby a single individual,and the naming of them by their official distinctionwas a mere designatlopersonae. * * + The trustwas not to be executedby them in their official character,but in,,their private and individualcapacities.

In this connection,Article 1.576 ofVernon's Civil Statutes shouldbe noticed. This statute reads as follows:

"Alldeeds and conveyancesheretofore
or hereaftermade and duly acknowledged,
or proven, and recordedas other deeds of conveyance, to any county, or to the courts
or commissionersof any county, or any other person or persons, by whatever form of conveyance, for the use and benefit of any county, shallbe good and valid to vest in such county in fee simple or otherwise all such right, title, interestand estate as the grantor in any such instrumenthad at the time of the execution thereof in the lands conveyend

and was intended thereby to be conveyed.

The statute declares title to be vested in the countywhen the conveyance is for the use and benefit of the count --- conveyance in this casewas no-or the usyarbene it of -73. The the county,nor was it for a countypurpose. Although countiesmay now own and maintain ublic cemeteries (Art.2351f, V.C.S.; cf. Art. 2351e,V.C.S.P, they did not have this power in 1914. At that time there was no statute authorizing counties to maintain public cemeteries,and a countyhas no power to maintain a cemeter Att'y Gen. Op. O-2699 (1940 J; without statutoryauthorization.

. The language of the deed indicatesno Intention to make Wise County the beneficial
owner of the property, and it cannot be assumed that such an intentionwas implied, since the countywas without authority to maintain public cemeteries.

It is our opinion that Wise County as a political subdivisionhas no Interest in this property or the proceeds from the mineral lease and that the CommissionersCourthas
no control over the property or the expenditureof the fundsHonorableWm. A. Nobles, page 5 (~~-1058)

derived from the lease. The County Judge as trusteemay spend suchportions of the funds as are reasonablynecessary for improvement,upkeep and maintenance of the cemetery. Disposition of any excess of funds beyond the amount necessary for these purposes is outside the scope of this opinion.

SUMMARY
Wise County as a political subdivision has no Interest In a tract of landwhich was deeded to the County Judge of Wise County and his successors In 1914 for cemeterypurposes, and the CommissionersCourthas no control over the property or the expenditure of funds derived from a mineral lease thereon.

Yours very truly,

WILL WILSON Attorney General of Texas

Assistant

APPROVED:

OPINION COMMITTEE W. V. Geppert, Chairman

William E. Allen Martin DeStefano Joe B. McMaster Fred Werkenthin

REVIEWED FOR THE ATTORNEY GENERAL By: Morgan Nesbitt