THEATTORNEY GENERAL 

OF -XAS 

Honorable Wm. A. Nobles Opinion No. ~~-1058 

County Attorney 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~may be used 

by the Commissioners 

Court of Wise County 

for general county purposes. 

Dear Mr. Nobles: 

question: 

You have requested an opinion on the following 

'Is the beneficial ownership of 

the minerals under a three-acre tract 

conveyed to the County Judge of Wise 

County, and his successors in. office, 

for cemetery purposes only, and the 

funds resulting from a lease of said 

minerals, vested in Wise County, and 

the funds subject to expenditure for 

general county purposes under the 

direction of the Commissioners Court, 

or does such mineral estate, and the 

funds derived therefrom, constitute a 

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 tract was first 

used as a cemetery Is unknown, but dates lnscribed on‘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 there had been no formal Instrument of dedication or 

conveyance of the tract for cemetery purposes, but several 

deeds between 1891 and 1910 conveying the parent tract of land 
Honorable Wm. A. Nobles, page 2 (~-1058) 

contained an exception clause following the description, in 

substantially similar teys, as follows: I'save and except 3 

acres used for cemetery. About 1910 the description was 

redrawn so as to exclude the cemetery tract, and succeeding 

conveyances utilize the new description rather than describing the parent tract and excepting the cemetery portion. In 

1914 the grantor In the 1891 deed, in which the parent tract 

was conveyed to a third party but the cemetery tract was reserved, conveyed the cemetery tract to the County Judge of 

Wise County and his successors by a deed which reads as 

follows (omitting formal parts): 

"Know all men by these presents, That 

J. W. Monk of the County of Wise and State 

of Texas, for and In consideration of the 

sum of one dollar, to me paid by the County 

Judge of Wise County Texas the receipt of 

which is hereby acknowledged have granted, 

sold and conveyed, and by these presents do 

grant, sell and convey unto the said County 

Judge of the County of Wise and State of 

Texas, all that certain tract of land being 

a square block of 3 acres out of southwest 

corner of a tract of land heretofore conveyed by me to my son Willis Monk land 

conveyed herein being for Cemetery purposes only and when failed to be used for 

that purpose it is to revert to grantor 

herein this land being out of the Willis 

Monk Survey. To have and to hold the above 

described premises, together with all and 

singular the rights and appurtenances thereto In anywise belonging unto the said County 

Judge and his succesors,heirs and assigns 

forever. And I do,hereby bind myself, heirs, 

executors and administrators, to warrant and 

forever defend, all and singular the said 

premises unto 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 containing about an acre, one being the "Lone Star 

School" tract and the other the %one Star Baptist Church" 

tract. In about 1955 oil leases were taken on all three 

tracts. A producing oil well was completed on the school 

tract, and all three tracts were formed into a~producing 

unit. The ownership of the minerals In the cemetery tract 
Honorable Wm. A. Nobles, page 3 (~~-1058) 

and of the funds derived under this lease 

in your opinion request. 

Is the matter involved 

We assume for the purpose 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 does not expressly use words 

of trust, we think it is clear beyond doubt that the conveyance was to the County Judge and his successors as 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: Smallwood v. Midfield Oil Co., 89 S.W.2d 108 6 

2nd Ed;), 

--- _ ___I --------~~ - ~~~~ (Civ. 

App. 1935). The County Judge hold1 FZiiZ legal title only as a 

trustee, and the beneficial ownership extends not 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 County has in the property and 

in the proceeds from the mineral lease would have to be based 

on the theory that the legal title was 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 declared was 

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 successors to be named as trustee 

of property devoted to a continuing public or charitable use. 

The naming of a public officer in a conveyance of this type 

is a convenient means 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 In his official capacity but in his 

private and individual capacit Inglis v. 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 

'In the case now before the court 

there Is no uncertainty with respect to 
Honorable Wm. A. Nobles, page 4 (WW-1058) 

the individuals who 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 filled by a 

single individual, and the naming of them 

by their official distinction was a mere 

designatlo personae. * * + The trust was 

not to be executed by them in their 

official character, but in,,their private 

and individual capacities. 

In this connection, Article 1.576 of Vernon's Civil 

Statutes should be noticed. This statute reads as follows: 

"All deeds and conveyances heretofore 

or hereafter made and duly acknowledged, 

or proven, and recorded as other deeds of 

conveyance, to any county, or to the courts 

or commissioners of any county, or any other 

person or persons, by whatever form of conveyance, for the use and benefit of any 

county, shall be good and valid to vest in 

such county in fee simple or otherwise all 

such right, title, interest and estate as 

the grantor in any such instrument had 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 county when 

the conveyance is --- for the use and benefit of the count 

conveyance in this case was no-or the usyarbene -73. it of The 

the county, nor was it for a county purpose. Although counties may 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 county has no 

power to maintain a cemeter 

Att'y Gen. Op. O-2699 (1940 J; 

without statutory authorization. 

. The language of the deed 

indicates no Intention to make Wise County the beneficial 

owner of the property, and it cannot be assumed that such an 

intention was implied, since the county was without authority 

to maintain public cemeteries. 

It is our opinion that Wise County as a political 

subdivision has no Interest in this property or the proceeds 

from the mineral lease and that the Commissioners Court has 

no control over the property or the expenditure of the funds 
Honorable Wm. A. Nobles, page 5 (~~-1058) 

derived from the lease. The County Judge as trustee may 

spend such portions of the funds as are reasonably necessary 

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 land which was 

deeded to the County Judge of Wise County 

and his successors In 1914 for cemetery purposes, and the Commissioners Court has 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