              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 pur-
                                         poses.
Dear Mr. Nobles:
            You have requested an opinion on the following
question:
                 '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 contln-
uously 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'saveand 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 describ-
ing 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 re-
served, 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 con-
          veyed by me to my son Willis Monk land
          conveyed herein being for Cemetery pur-
          poses 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 there-
          to 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 Is the matter involved
in your opinion request.
          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 convey-
ance 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 2nd Ed;),
sec._ ___I
---   151: --------~~
            Smallwood v.- Midfield
                             ~~~~     Oil Co., 89 S.W.2d 108 6 (Civ.
App. 1935).        The County Judge hold1FZiiZ 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).   In the Inglls case the
Court said:
               '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,,theirprivate
          and individual capacities.
          In this connection, Article 1.576of 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 con-
          veyance, 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 conveyendand 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 ofThe
the county, nor was it for a county purpose. Although coun-
ties 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 without statutory authorization.
Att'y Gen. Op. O-2699 (1940J;. 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 neces-
sary 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 pur-
            poses, 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
