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                                          July 24,     1953




      Hon. James A. Bethea. M.D.                 Opinion         No, S-73
      Executive   Director
      Board for Texas State Hospitals             Re:      Legality  of Board for Texas
      and Special Schools                                  State  Hospitals   and Special
      Aus tin, Texas                                       Schools acting as trustee of
                                                           testamentary     charitable
       Dear     Dr. Bethea:                                trust under submitted facts.

                     You have given us the following information.   Paragraphs
      four and six of~the last will and testament  of John C. Wende read, in
      part, as follows:

                         ‘4.  To the Board of Control of the State of Texas
                  and its successors    in office, in trust, for the State Or-
                  phans’ Home now operated for the benefit of orphans of
                  the State of Texas at Corsicana.     Texas,    or such other
                  orphans’ home as may be operated by the State of Texas
                  and selected   by the Board of Control,     I give, devise and
                  bequeath in trust for the use and benefit of said orphans
                  and subject to the conditions herein set out, the use, rents
                  and revenues    and income of the following described      tracts
                  of land . . . to be used for the benefit of such orphans as
                  the Board of Control and its successors        may deem advis-
                  able and in perpetuity.

                          ‘6.  After the death of my said wife, Augusta L.
                  Wende. all of said rest and residue of my property above
                  mentioned not otherwise disposed of by her . . . shall be
                  sold and liquidated and put in the form of cash money by
                  my executor hereinafter      named, and all of said money,
                  including the proceeds     of the sale of all of said rest and
                  residue,   I hereby give, devise and bequeath to the said
                  Board of Control of the State of Texas and its successors
                  in office in trust for said orphans’ home, or such other
                  orphans’ home as may be operated by the State of Texas
                  and selected     by the Board of Control,   the said Board of
                  Control and its successors      are to keep said fund and
                  monies invested for the benefit of said orphans’ home,
                  and the income of said fund to be used for said home in
                  perpetuity,    . . .”
Hon. James   A. Bethea,   page 2 (S- 73)




               You request the opinion of this office as to whether the
Board for Texas State Hospitals and Special Schools can act as trus-
tee of the charitable trust created by the above quoted provisions  of
Mr. Wende’s will.

                 Prior to 1949, the State Board of Control had supervi-
sion and control of all the State eleemosynary    institutions. Section 8
of Article   693, V.C.S.,  empowered   the Board to take and hold in trust
any gift for the benefit of such institution.  By House Bill 1, Acts 51st
Legislature,    1949, Chapter 316, page 588. the Board for Texas State
Hospitals and Special Schools was created: and all rights, privileges,
powers and duties previously     vested in the Board of Control were
transferred    to the Board for Texas State Hospitals and Special Schools.

               You are therefore advised that the Board for Texas State
Hospitals  and Special Schools can legally act as trustee of the chari-
table trust created by Mr. Wende’s will.

                                   SUMMARY

               Even though the State Board of Control was designated   as
trustee of a testamentary   charitable trust for the State Orphans’ Home,
the Board for Texas State Hospitals and Special Schools should act as
trustee of said trust.  H.B. 1, Acts 51st Leg., 1949, Ch. 316, p. 588.

                                        Yours   very   truly,

                                    JOHN BEN SHEPPERD
                                      Attorney General
APPROVED:

W. V. Geppert
Taxation Division                  BY

Willis E. Gresham                           Assistant
Reviewer

Robert S. Trotti
First Assistant

John Ben Shepperd
Attorney General


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