## THEA ORNEY GENERAL

June 29, 

## 1962

Honorable J. C. Dolley Vice-Chancellor(Fisca1Affairs) The University of Texas Austin 12, Texas
Dear Mr. Dolley: Opinion No.

## WW-1369
Re: Mose A. Gimbel's Estate

In a recent opinion request of this office, your requesting letter states as follows:

"An official opinion of your office is requested on the following factual situation in connectionwith the administrationof the Estate of Mose A. Gimbel, deceased,wherein The Unlversity of Texas M. D. AndersonHospital and Tumor Institutehas been designated as a beneficiarypursuant to paragraph 4 of the will which reads:
"'It Is my will and I do hereby provide that my said Trustee shallhold and administermy estate for one year after the death of my said sister, or until the New Medlcal Center adjoining Hermann Hospital is developed,when my remaining estate shall be liquidatedand my entire estate remaining estate shall be used for the erectionof a building In saidMedical Center, said building to be used for the purpose of advancing the cure of cancer; said building to be dedicated in memory of my beloved parents, Louis and Amelia Gimbel.'
"Mr.Gimbel of Houston,Harris County, Texas, executedhis will on August 9, 1950, in conformity with law and later on October

## 7,1954, executeda codicil. The will was admitted to probate in October, 

## 1958,

in the Probate Court of Harris County, Texas. The Executors, the Texas National Rank of Houston, who is also the TrusteeunderHonorable J. C. Dolley, page 2 

## (w-1369)

saidwill, and Herbert S. Gimbel of Miami, Florida, have designatedThe University of Texas M. D. AndersonHospital and Tumor Instituteas the institution to receive the remainderof the estate. Presentplans call for a new building on thenorth end of the Clinical Services Wing which will have seven floorswith approximately4,200 square feet of space to each floor, giving a total addltional area of approximately 29,400 square feet. This buildingwill be erected on a basement and ground floorwhich was provided in an earlierconstructionprogram. It will be erected as a separatebuilding and operated as an Integralpart of the M. D. Anderson Hospital and Tumor Institute,an Institution established for the purpose of research for advancing the cure of cancer. The building will be dedicated to thememory of the parents of Mose A. Gimbel,namely, Louis and Amelia Gimbel. There is attached to this request for your informationa brochure containing the constructionplan, the variousdepartments to be housed in the building, togetherwith a data sheet containinggeneral informationas to the organizational frameworkof The University of Texas M. D. AndersonHospital and Tumor Institute.
"It shouldbe mentioned that The University of Texas M. D. Anderson Hospital and Tumor Institute Is within the Texas Medical Center, The Center Is located on a tract of land consisting of approximately 140.321 acres which was conveyed to Texas Medical Center, Inc., by the M. D. Anderson Foundationby deed dated February 22, 1946, recorded In Volume 

## 1381, page 22 of the Deed Records of Harris County,Texas. There are approximately fifteen institutionswithin the Center, including the Post Graduate School of Medicine, Dental School, School of Nursing, Speech and Hearing Center, PsychiatricInstitute, Children's Hospital and otherhospitals. Vast sums of money have been expended for capital improvementsapproximating an investmentof $100,000,000. Further, large sums of money are spent annually on institutional budgets of the various institutions,whichHonorable J. C. Dolley, page 3 (WW-1369)

indicates clearly that the Texas Medical Center has been developed sufficientlywithin the contemplationof the will. "ThereIS attached for your Informationa brochure indicating the facilities locatedwithin the Medical Center. The hospitals are: "1. The University of Texas M. D. Anderson Hospital and Tumor Institutewith 300 beds and 300 patients daily, the full-time staff consistingof 76 members with 43 part-time staff members, 19 volunteers,and 81 consultants. "2. New Hermann Hospital - 375 beds, Old Hermann Hospital - 250 beds "(a) Nurses residence "(b) Arabian Temple Clinic and Children's Hospital have a working arrangement with this hospital "3

. St. LukesHospital - 340 beds "4. Texas Children'sHospital - 115 beds "5

. Methodist Hospital There is also under constructiona City-County Hospital which will be completed this fallwith a 720 bed capacity. The Baylor School of Medicine within the Texas Medical Center has 360 students, 90 facultymembers and many volunteer faculty. The Dental School has an enrollmentof 350 students and also operates a School of Dental Hygiene. "Inasmuchas the Executors and the Trustee have designated the University of Texas M. D. Anderson Hospital and Tumor Institute as a beneficiaryunder the will, we therefore requestyour opinion as to the validityof the grant to the University of Texas under the provisionsof paragraph 4 of the will of Mose A. Gimbel, deceased, and whether the Universitywould be authorized to accept the same.Honorable J. C. Dolley,page 4 (WW-1369)

"A copy of the will and the codicil of Mr. Gimbel are also enclosed for your consideration. We have requested a certified copy of the Order admitting the will to probate and Letters Testamentary which will be furnishedyou upon receipt. "Thankyou for your cooperation In this connection."
Your requesting letterwas supplementedby a letter from Mr. BurnellWaldrep, Land and Trust Attorney, University of Texas, which reads in part as follows:

"The followingare enclosed in connection our request for an opinion of your office relative to the Estate of Moae A. Glmbel, deceased: with -

"1. Letter fromMr. Tom Eubank to M. D. AndersonHospital and Tumor Institute,dated June 11, 1962, relative to the validity of the grant under the will of Mose A. Gimbel, deceased. "2. Letter from Mr. Arthur Trum,Vice Presldent and Senior Trust Officer of the Texas National Bank, Houston, Texas, and Herbert S. Gimbel In their capacity as Independent Co-Executorsand the Bank in its capacity as TestamentaryTrustee relative to the selectionof M. D. AndersonHospital and Tumor Institute as a beneficiaryunder the will.
"3. Letter fromMr. Eubank to me relative to the letters. "4. Order admitting the will to probate in Harris County, Texas (No. 65,048).
"5. Letters Testamentary." First, your opinion requestpresents the question of whetherparagraph four of the Mose Glmbelwill Is definite and certain enough to constitute a valid charitable trustunder Texas law.

We are of the opinion thatunder Texas law as explained, elaboratedon, and as held in the cases of Boyd v. Frost National M, 145 Tex. 206, 196 S.W.2d 497, 168 A.L.R. 1326 (1946);Honorable J. C. Dolley, Page 

## 5 (WW-1369)

Powers v. First National Hank of Corslcana,

## 138 Tex. 

## 604,

161 S W 2d 

## 2’13

(1942) 'Rentzv. FirstNational Hank of Corsicana, 3$j*S.W,2d 958 (Civ.App.1959, error ref.), the will f M A. Glmbel creates a valld charitable trust. Among th"especific categories enumeratedas charitablepurposes in the = case supra,which might be the basis of charitable trusts are: the advancementof education; (2) the promotion of health;(II 

## (3) governmental or municipalpurposes; and (4) other purposes the accomplishmentof which is beneficial to the community.
Mose Glmbelby paragraph four of his will states that his residuary estate is to be used for the erection of a building In

"thenew Medical Center adjoiningHermann Hospit&" The new Medical Center adjoiningHermann Hospital does mean and could only mean what is now called the Texas Medical Center located in Houston,Harris County, Texas. Mose A. Gimbel by the provisions of his will states that he IS a resident of Harris County, Texas. The Hermann Hospital standing on the Old GeorgeHermann 20-acre estatehad long been a landmark of Houston, Texas, at the time Mose A. Glmbel executedhis will.

The TexasMedical Centerwas formed on November 1, 1945. On February

## 28,1946, the M. D. Anderson Foundationpresented a deed to the Texas Medical Center, Inc. for more than 130 acres of land, adjoining the Hermann Hospital Properties, The Texas Medical Centerwas

"formed exclusively for benevolent,charitable and educationalpurposes.' Paragraph four of the Mose A. Glmbel will further states that the proposedbuilding aforementionedis

"tobe used for the purpose of advancing the cure of cancer." Such a purpose es advancing the cure of cancerwould fall Into each of thefourpurposes set out above which were held to be charitablepurposes in the s case, supra. Under these facts and the authorities cited, we are of the opinion paragraph four of the Mose A. Glmbelwill created a valid charitable trust,with the TexasNational Bank of Houston, Texas, as trustee.Honorable J. C. Dolley, page 

### 6 (h'&1369)

Having made this determination,we are next confronted with the question of when may the trustee act regarding the erection of the proposedbuilding. The Gimbelwill provides in paragraph four that

"the trustee shall hold and administer my estate for one year after the death of my said sister,or until the new Medical Center adjoiningHermann Hospital is developed" before the erectlon of the proposed building.

It shouldbe noted that the two above quotedprovisions or conditionsas to when the proposed building shall be erected are disjunctiveand not conjunctive. When either of the two has occurred, the buildingmight be erectedunder the terms of the will.
In the Instant case, we are of the opinion that both conditions have transpired. Mose A. ffimbel's sister,Tillye Gimbel, died between the years 1950 and 1954. the Texas Medical Center "is developed" We are of the opinion that within the meaning of the second conditionmentioned above. Webster'sNew InternationalDictionary, Second Edition, 

### 1958,defines develop in part:

11

. . . 

### "5. to make more available or usable; as to developwater power, natural resources, or building sites. 11

. . . 

### "13. Real Estate. To convert from a tract of raw land Into an area suitable for residential or businessuses."
From the brochure regarding the TexasMedical Center attached to your opinion request, it is noted that over 

### 56mlllion dollarsworth of buildingshave been built In the Center. Capital Investments In all units exceed 94 million dollars: the annual budgets are in excess of 

### 35million dollars; streets have been built for the entire area and subdivisionplans prepared therefor. Certainly ,theTexas Medical Center is developedHonorable J. C. Dolley, page 

### 7 (WW-1369)

within the language of Mose A. Gimbel'swill and charitable trust. We are of the opinion both conditionshave occurred. The quest are:

. third and fourth questionspresented by your reDoes the M. D. AndersonHospital and Tumor Institute constitutea charitablebeneficiaryunder paragraph four of Mose A. Gimbel'swill to which his trustee Is authorized to grant the proposedbuilding or funds, therefor,and, if it does constitute ,acharitablebeneficiary,will the structureproposed to be built constitutea buildingunder the terms of the will? The M. D. AndersonHospital and Tumor Institute is a State Institution createdby H. B. 

### 268,Acts 47th Leg., R.S. 1941, Ch. 

### 548,p. 

### 878,and Acts 51st Leg., 1st C'.S. 1950, Ch. P. and is a unit of The University of Texas Systim operatingunder the control and management of the Hoard of Regents of theUniversity of Texas.

The Hoard of Regents determined to locate the M. D. AndersonHospital and Tumor Institute in the Texas Medical Center in Houston. The Hoard of Directors of The Texas Medical Center has designatedThe University of Texas M.~Di AndersonHospital and Turmor Institute as the official institution for cancer research and care within the Center.

Under these facts, in our opinion, The University of Texas M. D. AndersonHospital and Tumor Institute constitutesa valid, legal, charitablebeneficiaryunder the terms of theMose A. Glmbel will to receive the building or funds, therefor,proposed by paragraph four of the will from the Texas National Hank as trustee of said trust and co-executorof said estate and from Herbert S. Glmbel, co-executorof said estate.

In 12 C.J.S. 379, building, as a noun, is defined in part: 11

. . .fin7 addition to a building already constructed,-wiiere it forms SO considerablepart of the originalbuilding as to constitute a new building

. . . '
To this same effect are 'Willis v. Hoyd, 29 S.E. 707, 103 Ga. 130; Rice v. Hoard of Police Com'rs. of City of Wornsocket, 97 A. 19, 

### 39 R.1. 22.

In the instant case, it is proposed that the new building shallhave seven new floors of 4,200 square feet floor space each,Honorable J. C. Dolley, page 8 (W-1369)

an elevator,and is to be constructedat a cost of $1,058,400. This new building will have plaques placed at each entrance thereto stating that the building Is

Dedicated in Memory of Louis and Amelia Glmbel

by Mose A. Gimbel.
We are of the opinion thatunder these facts the proposed building comeswithin the purview andintentof paragraph four of the Mose A. Gimbelwill.

Finally,we are confrontedwith the question of whether The University of Texas can accept the proposed grant from the trustee of the Mose A. Gimbel trust. By the provisions of Article 2603e, Section 12, Vernon's Civil Statutes, The University of Texas is authorized to accept grants or gifts from other than State sources on behalf of the M. D. AndersonHospital and Tumor Institute,Texas Medical Center,Houston, Texas. It might also be pointed out that under the AppropriationAct of the 57th Legislature, the University is also authorized to accept gifts on behalf of the M. D. AndersonHospital and Tumor Institute. Therefore,we are of the opinion that the Board of Trustees of The University of Texas is authorized to accept the grant from the Texas National Bank, trustee of the Mose A. Gimbel charitable trust set forth In paragraph four of his will.
SUMMARY

Paragraph four of the Mose A. Gimbelwill creates a valid charitable trust. The proposed grant by the TexasNational Bank of Houston, Texas, trustee of the Mose A. Gimbel trust of a building to be erected on the north end of the Clinical Services Wing of the M. D. AndersonHospital and Tumor Institute is a valid zrant to The University of Texasunder the terms of the Mose A. Glmbel will and trust,which The University of Texas Is authorized to accept.

MR:afg:me Yours very truly, WILL WILSON Attorney General of Texas

Milton Richardson AssistantAttorney GeneralHonorable J. C. Dolley, Page 9 (WW-1369)

APPROVED:
OPINION COMMITTEE W. V. Geppert, Chairman John Reeves Bob Shannon Robert Lewis Grady Chandler
REVIEWEDFOR THEATTORNEYGENERAL BY: Houghton Brownlee, Jr.