         THEA          ORNEY        GENERAL




                         June 29,   1962

Honorable J. C. Dolley                     Opinion No.   WW-1369
Vice-Chancellor(Fisca1 Affairs)
The University of Texas                    Re:   Mose A. Gimbel's
Austin 12, Texas                                 Estate
Dear Mr. Dolley:
       In a recent opinion request of this office, your request-
ing letter states as follows:
           "An official opinion of your office is re-
      quested on the following factual situation in
      connection with the administration of the Estate
      of Mose A. Gimbel, deceased, wherein The Unl-
      versity of Texas M. D. Anderson Hospital and
      Tumor Institute has been designated as a bene-
      ficiary pursuant to paragraph 4 of the will which
      reads:
           "'It Is my will and I do hereby provide that
      my said Trustee shall hold and administer my
      estate for one year after the death of my said
      sister, or until the New Medlcal Center adjoin-
      ing Hermann Hospital is developed, when my re-
      maining estate shall be liquidated and my entire
      estate remaining estate shall be used for the
      erection of a building In said Medical 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,
      executed his will on August 9, 1950, in conformity
      with law and later on October 7, 1954, executed a
      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 Trustee under
Honorable J. C. Dolley, page 2   (w-1369)


      said will, and Herbert S. Gimbel of Miami,
      Florida, have designated The University of
      Texas M. D. Anderson Hospital and Tumor
      Institute as the institution to receive the
      remainder of the estate. Present plans call
      for a new building on the north end of the
      Clinical Services Wing which will have seven
      floors with approximately 4,200 square feet
      of space to each floor, giving a total addl-
      tional area of approximately 29,400 square
      feet. This building will be erected on a
      basement and ground floor which was provided
      in an earlier construction program. It will
      be erected as a separate building and operated
      as an Integral part 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 the memory of the parents
      of Mose A. Gimbel, namely, Louis and Amelia
      Gimbel. There is attached to this request for
      your information a brochure containing the con-
      struction plan, the various departments to be
      housed in the building, together with a data
      sheet containing general information as to the
      organizational framework of The University of
      Texas M. D. Anderson Hospital and Tumor In-
      stitute.
            "It should be mentioned that The University
       of Texas M. D. Anderson Hospital and Tumor In-
       stitute 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 Foundation by deed dated February 22,
       1946, recorded In Volume 1381,page 22 of the
       Deed Records of Harris County, Texas. There are
       approximately fifteen institutions within the
       Center, including the Post Graduate School of
       Medicine, Dental School, School of Nursing, Speech
       and Hearing Center, Psychiatric Institute, Children's
       Hospital and other hospitals. Vast sums of money
       have been expended for capital improvements approxi-
       mating an investment of $100,000,000. Further,
       large sums of money are spent annually on institu-
       tional budgets of the various institutions, which
Honorable J. C. Dolley, page 3 (WW-1369)


       indicates clearly that the Texas Medical Center
       has been developed sufficiently within the con-
       templation of the will.
            "There IS attached for your Information a
       brochure indicating the facilities located with-
       in the Medical Center. The hospitals are:
           "1. The University of Texas M. D. Ander-
      son Hospital and Tumor Institute with 300 beds
      and 300 patients daily, the full-time staff con-
      sisting of 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. Lukes Hospital - 340 beds
            "4.    Texas Children's Hospital - 115 beds
            "5. Methodist Hospital
      There is also under construction a City-County
      Hospital which will be completed this fall with a
      720 bed capacity. The Baylor School of Medicine
      within the Texas Medical Center has 360 students,
      90 faculty members and many volunteer faculty.
      The Dental School has an enrollment of 350 stu-
      dents and also operates a School of Dental Hygiene.
           "Inasmuch as the Executors and the Trustee have
      designated the University of Texas M. D. Anderson
      Hospital and Tumor Institute as a beneficiary under
      the will, we therefore request your opinion as to
      the validity of the grant to the University of
      Texas under the provisions of paragraph 4 of the
      will of Mose A. Gimbel, deceased, and whether the
      University would 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 Testa-
       mentary which will be furnished you upon receipt.
            "Thank you for your cooperation In this con-
       nection."
       Your requesting letter was supplemented by a letter from
Mr. Burnell Waldrep, Land and Trust Attorney, University of Texas,
which reads in part as follows:
            "The following are enclosed in connection
       with
         -  our request for an opinion of your office
       relative to the Estate of Moae A. Glmbel, de-
       ceased:
            "1. Letter from Mr. Tom Eubank to M. D.
       Anderson Hospital 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 Presl-
       dent and Senior Trust Officer of the Texas National
       Bank, Houston, Texas, and Herbert S. Gimbel In their
       capacity as Independent Co-Executors and the Bank in
       its capacity as Testamentary Trustee relative to the
       selection of M. D. Anderson Hospital and Tumor In-
       stitute as a beneficiary under the will.

            "3. Letter from Mr. 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 request presents the question of
whether paragraph four of the Mose Glmbel will Is definite and
certain enough to constitute a valid charitable trust under
Texas law.
       We are of the opinion that under Texas law as explained,
elaborated on, 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, 138Tex. 604,161
S W 2d 2’13(1942) 'Rentz v. First National 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 enumerated as charitable purposes in the =    case
supra, which might be the basis of charitable trusts are: (II
the advancement of education; (2) the promotion of health;
(3)governmental or municipal purposes; and (4) other purposes
the accomplishment of which is beneficial to the community.
       Mose Glmbel by paragraph four of his will states that his
residuary estate is to be used for the erection of a building In
           "the new Medical Center adjoining Hermann
      Hospit&"
       The new Medical Center adjoining Hermann 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
George Hermann 20-acre estate had long been a landmark of Houston,
Texas, at the time Mose A. Glmbel executed his will.
       The Texas Medical Center was formed on November 1, 1945.
On February 28,1946, the M. D. Anderson Foundation presented a
deed to the Texas Medical Center, Inc. for more than 130 acres
of land, adjoining the Hermann Hospital Properties, The Texas
Medical Center was
            "formed exclusively for benevolent,charitable
       and educational purposes.'

       Paragraph four of the Mose A. Glmbel will further states
that the proposed building aforementioned is

            "to be used for the purpose of advancing the
       cure of cancer."
Such a purpose es advancing the cure of cancer would fall Into
each of thefour purposes set out above which were held to be
charitable purposes in the s    case, supra.
       Under these facts and the authorities cited, we are of the
opinion paragraph four of the Mose A. Glmbel will created a valid
charitable trust, with the Texas National 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 proposed building. The Gimbel will 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
       adjoining Hermann Hospital is developed"
before the erectlon of the proposed building.
       It should be noted that the two above quoted provisions
or conditions as to when the proposed building shall be erected
are disjunctive and not conjunctive. When either of the two has
occurred, the building might be erected under the terms of the
will.

       In the Instant case, we are of the opinion that both con-
ditions have transpired. Mose A. ffimbel'ssister, Tillye Gimbel,
died between the years 1950 and 1954. We are of the opinion that
the Texas Medical Center "is developed" within the meaning of the
second condition mentioned above.
       Webster's New International Dictionary, Second Edition,
1958, defines develop in part:
            11
             . . .
           "5. to make more available or usable; as to
      develop water 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 business uses."
       From the brochure regarding the Texas Medical Center at-
tached to your opinion request, it is noted that over 56 mll-
lion dollars worth of buildings have been built In the Center.
Capital Investments In all units exceed 94 million dollars: the
annual budgets are in excess of 35 million dollars; streets
have been built for the entire area and subdivision plans pre-
pared therefor. Certainly ,theTexas Medical Center is developed
Honorable J. C. Dolley, page 7 (WW-1369)


within the language of Mose A. Gimbel's will and charitable
trust. We are of the opinion both conditions have occurred.
       The third and fourth questions presented by your re-
quest are:
        .   Does the M. D. Anderson Hospital and Tumor Institu-
te constitute a charitable beneficiary under paragraph four of
Mose A. Gimbel's will to which his trustee Is authorized to
grant the proposed building or funds, therefor, and, if it does
constitute ,acharitable beneficiary, will the structure proposed
to be built constitute a building under the terms of the will?
       The M. D. Anderson Hospital and Tumor Institute is a State
Institution created by 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
operating under the control and management of the Hoard of Re-
gents of the University of Texas.
       The Hoard of Regents determined to locate the M. D. Ander-
son Hospital and Tumor Institute in the Texas Medical Center in
Houston. The Hoard of Directors of The Texas Medical Center has
designated The University of Texas M.~Di Anderson Hospital 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. Anderson Hospital and Tumor Institute constitutes a valid,
legal, charitable beneficiary under the terms of the Mose 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-executor of said estate and from
Herbert S. Glmbel, co-executor of said estate.
        In 12 C.J.S. 379, building, as a noun, is defined in
part:
             11
              . . . fin7 addition to a building already
        constructed,-wiiereit forms SO considerable part
        of the original building as to constitute a new
        building . . . '
       To this same effect are 'Willisv. 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
shall have 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 constructed at 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 that under these facts the pro-
posed building comes within the purview andintent of paragraph
four of the Mose A. Gimbel will.
       Finally, we are confronted with 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 Uni-
versity of Texas is authorized to accept grants or gifts from
other than State sources on behalf of the M. D. Anderson Hospital
and Tumor Institute, Texas Medical Center, Houston, Texas. It
might also be pointed out that under the Appropriation Act of
the 57th Legislature, the University is also authorized to ac-
cept gifts on behalf of the M. D. Anderson Hospital 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. Gimbel will
            creates a valid charitable trust. The
            proposed grant by the Texas National 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. Anderson Hospital and
            Tumor Institute is a valid zrant to The
            University of Texas under the terms of the
            Mose A. Glmbel will and trust, which The
            University of Texas Is authorized to accept.
                                   Yours very truly,
                                   WILL WILSON
                                   Attorney General of Texas


                                       Milton Richardson
MR:afg:me                              Assistant Attorney General
Honorable 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.
