                  EAYTOIRNEY                GENERAL
                         OF          EXAS




Honorable A. $. Sutton
County Auditor
Anderson County
Palestine,  Texas

Dear Sir:                   Opinion     No. 0*4601

                            Rer &Yfeot of zibsndonment or non-use
                                on ti.tle  to land constituting a
                                oharitable   trust.

We have oonsldered  the questions  oontalnsd   in   our letter   of
May 18, 1942, addressed  to the Attorney    @enera 9 and reading
as f 0110~s ;

     “On Jan. 26, 1881 5.     W. Wallace     et   ux et   al exeouted
     a deed, the material     part    of’ whioh   reads   as followar

     "'!Phat we, ci. W. Wallaoe and hie wife,   M. J. Wallaoe,
     and W. B. Watson; for and in oonelderatlon      of one
     dollar   to us paid and the fuurther oonaiderat5on    ol’
     a desire   to promote the oause of Bauoation    have this
     day granted and sold and by these preasnts      do grant
     sell   and oonvey unto J, HI Barton   Jama A, Quiok and
     U. W. LUnafoPa,   Trua6rra      for bhr &ok      Sohool   ~oi-tamunlby
     In Andrroon Oount and thrir          auaooaaora  fozwrr  for thr
     uoa and brnrllb      o iK the aohool and ohuroh purpoara thr
     followln     drrorlbod     land aibuabrd   in Andrrron Oounby,
     Texas,   a %out la nrllea north of PalrrbSnr,       toni  A
     part of tihr Norbh Xali of 0, Oroor Loagui
     IIf Be inning      at 8, ID, oornrr of Lot Nor 6 of bhr aub-
     dlvla   ! on of arid north    half and running North with l&r
     dlvldin        Lot Nor 0 and Lot No. 4 780 va a a rtonr lOP
     oomem       ! ram whloh a rrd oak 6 ln mkd X brr 8 1st W 7 9/6
     VY Hlokory   18 in mkd X bra N a0 deg. PI 1st VI Thenor
                 oroaa rpring branoh a0 v r5ghb of I Ing 160
               for oor from whloh a blook jaok 6 In r brr N
               va and Porrt Oak 10 In n&d X bm S 56* W 8 VI
     Thrnoe  Worth lb0 VI Stakr for oomor from whhoh port oak
     0 In in dla bra S 40 deg. W 0 l/4 VI a Hlokory 0 ti
     mkd x bra N 68 deg. W 9 VI Thpnoe South wlth rald Qulok@r
     weat Lm    160 v6 to the plaos of Irt oorner of this plot
     oontaln%ng 4 aorea of land to have and to hold the aam
                                                         ..-



 Hon. A. E.    Sutton   - Page 2-o-4601




       unto said school      Trustees   for school and church
       Purposes forever;      We hereby convey and quit claim
       forever    said lands and use and implements to said
       Trustees    and their   successors   for the uses and purposes
       aforesaid.”

       “Many Years later     the Elmtown Common School Distriot
      and the Conoord Common Sohool Distriot            were organized.
      The Concord School District        inoluaed    the territory
      described    hereinabove.    The sohool house located          and
      situated   on the above desoribed        property   was moved
      into the Elmtown School Distriot          and was later     sold.
      There has not been a house on the above desoribed               tract
      of land, nor has it been used for sohool            or ohuroh
      purposes   sinoe the removal of the building          mentioned
      above.    Assuming that G. W. Wallaoe et ux et al owned
      the fee simple title      to the traot     of land described       in
      the above deed, and that there has not been a oonveyanoe
      of any kind or oharaoter      since    the date of the above
      described   deed, which distrlot,       if either,    owns said
      land?
      “I shall appreoiate     your opinion      on the         above   question
      at your earliest    oonvenienoe.~~
In our opinion,       the deed mentioned’oreated       a oharitable       trust
for school      and ohuroh purposes     in favor of the residents           of
the Quick Sohool Community in Anderson County, Texas.                   Charities
are highly     favored   in law and it is an elemental         rUle   that a
court of ohmoery        will not allow a trust       to fail    for want of a
trustee.      9 Tex. Jur. 55,56.       “In the event that the person
appointed     trustee   refuses   to acoept   the offioe,     or resi
after    aooeptanoe,    or beoause mentally      inoompetent,      or d rl””
                                                                          es)
or is removed, the court has the power to appoint                another Person
to act in his stead.”          42 Tex. Jur. 625.
If it appears that the maintenance           of the pro erty for sohool
and ohurah purposes      for the Quiok Sohool Comm% itg in Anderson
County has beoome impraotioable,          the Diatriot   Court may, in a
proper proceeding     brought   for that pur 080, order the property
decreed out of the trustees        named in t Re deed or their
successors    and vest It in the Conoord Common Sohool Distriot
whioh now inoludes     the Quiok Sohool Community, or the oourt
might, depending    on the facts,      order the property    sold and
the      prooeeds  applied    as nearly    as may be to the oharitable
purposes named in the deed.         Inglish    v, Johnson, 96 S. W. 558,
Error Refused,
The answer to your inquir      is that the title   to the *o arty
is in the trustees  J. H. g arton,    James A. Qulok and 6. #,
Lunsford  or their suoaes80rsr
Hon. A. E.   Sutton   - Page 3 O-4601



                                      Yours    very   truly

                               ATTORNEYGENERALOF TEXAS

                                 s/    Fagan    Dickson

                               BY
                                                 Fagan Diokiori
                                                       Asskitant


FD:BT/cg

APPROVEDJ7XJE11, 1942
8/ Gerald C. Mann
ATTORNEYGEZWXALOF TEXAS


APPROVEDOPINION COMXITTEE
ByBWB, Chairman
