DocketNumber: WW-1369
Judges: Will Wilson
Filed Date: 7/2/1962
Status: Precedential
Modified Date: 2/18/2017
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 scase, 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.