F.O. Birmingham Memorial Land Trust

Franklin Ovid Birmingham Memorial Land Trust

CONTENTS OF ORIGINAL TRUST
1 NOV 1940

ARTICLE

1. Memorial to son Advantages which might not otherwise be available
2. Importance of manual training & domestic economy more importance to ..dignity of labor,.
3. Act to accomplish wishes and desires
4. Give and grant land
   1. First Tract
   2. Second Tract
   3. Third Tract
   4. Fourth Tract
   5. Fifth Tract
   6. Sixth Tract
   7. Seventh Tract
5. Reserve ½ of oil & gas
6. Selecting Trustees
7. Number of trustees (5)
   Mayor and Four members from selected churches
8. Residence requirement of trustees
9. Automatic removal of non-resident
10. Exclusion of Board of Trustees of Wylie I.S.D.
11. Successor of mayor
12. Election of trustees & replacement by churches
13. Death of trustee
14. Trustees appointment
15. Trustees/five in number
16. Trustees/recording of first named
17. Trustees/Mayor as chairman
18. Non-liability of trustees
19. Properties for benefit of Wylie I.S.D. exclusively
    training of ….schools manual training and domestic economy
20. Trustees shall; operate, manage, control and administer
    1. maintain properties
       emergency funds
    2. net income paid for upkeep and betterment of mechanical arts and domestic science
21. No limit of use except to mechanical training and domestic science
22. Not prevented from new technical advances
23. No intention to prescribe instructions
24. Before payment W.I.S.D. must agree to use of funds for correct benefit of manual training and domestic science ….and in no other way.
25. School district shall be required to furnish full and complete statement showing expenditurs of all funds.
26. Land board withholding funds for improper use
27. Limitations and restrictions on trustees
    1. no property shall be sold
    2. no mortgage
    3. no exchange of property
    4. taken property replacement
       money received emergency fund
       money received to be expended at the discretion of trustees
    5. trustee cannot use land
    6. no compensation to trustee
28. No rents, revenues or income can be used for debt
    • whether represented by bonds
    • whether liability out of mechanical arts and domestic economy
    • should such income never be paid, no recourse of any kind against this trust
    • income is not the school district's until actually paid to District
29. Exclusion from any other taxes
30. Trustees powers
    1. contracts of lease
    2. collect taxes
    3. render taxes-limited
    4. rebuild-make permanent improvements
    5. protect and defend trust
       employ attorneys

Franklin Ovid Birmingham Memorial Land Trust

STATE OF TEXAS
: KNOW ALL MEN BY THESE PRESENTS :
COUNTY OF COLLIN

(1) Whereas, Franklin Ovid Birmingham, oldest son of T.F. Birmingham and wife, Hattie A. Birmingham, who died on the 9^th day of October 1911, is buried at the Wylie Cemetery at Wylie, Collin County, Texas, and we, the said T.F. Birmingham and Hattie A. Birmingham, wish to create to his memory a suitable memorial, not only that he shall not be forgotten, but also that in doing so we may be assistance to others whose lives are yet to be enjoyed in offering to them advantages which might not otherwise be available.

(2) Whereas, for some time we have been of the opinion that adequate facilities for the instruction of boys and girls in manual training and domestic economy, those useful and ordinary arts now so frequently passed over in seeking to pursue training, which neglects these material and worthwhile lessons for others leading only to business, law, medicine, and the similar now overcrowded occupations and professions, and that more importance should be attached in our schools, and more children given the opportunity to learn the mechanical trades, the different handicrafts and useful arts, the dignity of labor, and the ever important lessons in cooking, sewing and other domestic ways of life.

(3) AND WHEREAS, we believe and hope that by this act we can and will accomplish those wishes and desires.

(4) NOW, THEREFORE, we, T.F. Birmingham and wife, Hattie A. Birmingham, of Tulsa, Oklahoma, in consideration of the premises, HAVE GIVEN, GRANTED, BARGAINED, SOLD AND CONVEYED, and by these presents do give, grant, bargain, sell and convey (except as below stated) unto W. A. Housewright, of Collin County, Texas, and his successors, in trust, for the purposes and uses hereinafter stated, the following described lands and premises, to wit:

"First Tract: Situated in Collin County, Texas, and being part of the land patented to Joe B. Patterson, Assignee of Charles Atterberry by Patent No. 247, Vol. 7, Abst. No. 22, and described by metes and bounds as follows, to wit:

BEGINNING at the Southwest corner of said original Survey;

THENCE East with the South boundary lines of same to the Southeast corner thereof; THENCE North with the East boundary line of said original survey 110 rods, a stake; THENCE West on a line parallel with the South boundary line of said original survey to a stake in the original West boundary line thereof;

THENCE South with said West boundary line 110 rods to the place of beginning, and containing 110 acres of land, and being the same tact of land conveyed to W. H. Kilgore by A.J. Joice and wife, by deed recorded in Book X, page 183, Collin County Deed Records, and being the same land conveyed to Sallie C. Kilgore by Nellie Housewright and her husband. G.W. Housewright by deed dated December 3, 1893.

And being the same lands and premises deeded to T.F. Birmingham on September 28, 1929, by Agnes V. Daniel et vir, the deed to which is duly recorded in Vol. 276, page 688, Collin County Deed Records.

"Second Tract: Situated in Collin County, Texas, in the McUlmurry Survey, BEGINNING at the Northwest corner of a tract of 81.42 acres, more or less, deeded by Caroline Kreymer by deed recorded in Vol. 261, page 691, Collin County Deed Records, same being a stake in the West line of the McUlmurry Survey, 20.405 chains North of the Southwest corner of said surevey;

THENCE North with the West line of said survey 20.395 chains to a stake;

THENCE East 39.93 chains to a stake in the East line of said McUlmurry Survey;

THENCE South 22.30 chains to the Northeast corner of said 81.42 acre s of land, more or less, deeded to the said J.A. Kreymer aforesaid, the same being 20.405 chains North of the Southeast corner of said survey;

THENCE West with the North line of J.A. Kreymer's 81.42 acre tract, 39.91 chains to the place of beginning, containing 85.22 acres of land, more or less.

And being the same tract of land deeded by Caroline Kreymer to Mary Thompson by deed recorded in Vol. 261, page 694, Collin County Deed Records, as the same has been re-survey by Add G. Wilson, County Surveyor, of Collin County Texas, in July or August, 1938.

And being the same lands and premises described in deed from Mary Thompson Hughes et vir to T.F. Birmingham, dated November 6, 1939, duly recorded in Vol. 322, page 632, Collin County Deed records.

"Third Tract: Situated in Collin County, Texas, and being 76 acres of land about 2 miles Northwest from Wylie, Texas, and being a part of a 320 acre survey made originally in the name of D.W. Williams, Pat. No. 244, Vol. 7, Cert. No. 1054, in Collin County, Texas, described by metes and bounds as follows:

BEGINNING at the Northwest corner of said original 320 acre survey;

THENCE South 20 chains to a post in the prairie;

THENCE East 38 chains to a post in the East boundary line of a 152 acre tract or survey conveyed to Thos. H. and David H. Malloy by A.J. and Amanda Joice by deed dated February 10, 1870;

THENCE North 20 chains to the Northeast corner of said 152 acre tract;

THENCE West 38 chains to the place of beginning, containing 76 acres of land, in Collin Countyu, Texas, and being the same land described in a deed from Tom J. Hall et ux to T.A. Blake, dated January 2, 1925, and recorded in Vol. 253, page 38, Collin County Deed Records.

"Fourth Tract: Situated in Collin County, Texas, and being part of land patented to Henry Maxwell, Assignee of James C. McUlmurry, by Pat. 246, Vol. 7, Abst. 629, and described as follows, to wit:

BEGINNING at the Northwest corner of a 320 acre tract made in the name of William Patterson, Assignee of C. Atterberry;

THENCE North with the West boundary line of the McUlmurry Survey 20.351/2 chains a stake;

THENCE East 40 chains to a stake;

THENCE South 20.35 ½ chains to a stake;

THENCE West 40 chains to the place of beginning, containing 81.42 acres of land.

And being the same lands and premises described in a deed from J.A. Kreymer et ux to T.F. Birmingham, dad June 14, 1938, duly recorded in Vol. 317, page 382, Collin County Deed Records.

"Fifth Tract: (A) Situated in Collin County, Texas, and being a part of the Mercer Phelan Survey, and beginning at the Southwest corner of the E.A. Housewright tract;

THENCE East 35.29 chains to a stake;

THENCE North 16.60 chains to stake;

THENCE West 35.89 chains to a stake in the West boundary line of the said E.A. Housewright tract;

THENCE South 16.60 chains to the place of beginning, containing 59.07 acres of land.

(B) Situated in Collin County, Texas, in the same survey as Tract A above, and beginning at the Southeast corner of Lot No. 1;

THENCE West 24.11 chains to a stake;

THENCE South 16.60 chains to a stake in the South boundary line of the said E.A. Housewright tract;

THENCE East 24.11 chains to the Southeast corner of said E. A. Housewright tract;

THENCE North 16.60 chains to the place of beginning, containing 40.02 acres of land.

The two above described tracts of land containing 99.09 acres of land.

And being the same lands and premises described in a deed from Geo. H. Housewright et ux to T.F. Birmingham, dated December 21, 1927, duly recorded in Vol. 269, page296, Collin County Deed Records.

"Sixth Tract: Situated in Collin County, Texas, being part of a survey 320 acres of land made originally in the name of D.W. Williams, on the waters of East Fork of the Trinity River, and about 12 ½ miles southerly from McKinney, said survey being Abst. 1021;

BEGINNING at the Northeast corner of said original 320 acre survey;

THENCE South on the East boundary line of the original survey to the Southeast corner thereof;

THENCE West on the South boundary line of the original survey to T.A. Mallow's Southeast corner;

THENCE North on the East boundary line of said Mallow's tract to the North boundary line of the said original 320 acre survey;

THENCE East to the beginning, containing 168 acres of land, more or less.

And being the same land that was deeded to W. M. Housewright by H.W. Joyce and Hannah M. Joyce May 14, 1875, recorded in Vol. Z, pages 517-18, Collin County Deed Records.

LESS, HOWEVER, 50 acres of land that was conveyed by W. M. Housewright et ux to W.R. Wallace by deed dated December 17, 1877, recorded in Vol. 6, pages 186-7, Collin County, Texas, Deed Records, leaving 118 acres of land in said tract.

This tract of land is further identified as being the farm where the farm house burned in the year 1933, and situated on the North side of the Wylie-Plano public road.

And being the same 118 acres of land conveyed by Jick Housewright et al to T.F. Birmingham, on June 23, 1937, the deed to which is recorded in Vol. 312, page 5511 Collin County Deeds Records.

"Seventh Tract: (A) Situated in Collin County, Texas, about 12 miles Southeast from the town of McKinney, in the Charles Atterberry Survey, Abst. No. 22, by virtue of Cert. No. 832, of the third class, issued to the said Charles Atterberry on May 6, 1850, and patented to Joel B. Patterson, assignee under Pat. No. 247, Vol. 7, dated April 8, 1853, and the land herein conveyed being the South one-half of the North 210 acres in said Atterberry or Patterson Surveys, which 210 acres is described as follows:

BEGINNING at the Northwest corner of the said Atterberry original survey:

THENCE East on the North boundary line of the said survey to the Northeast corner thereof;

THENCE South with the East boundary line of said survey such a distance to a point as that a line drawn therefrom;

THENCE to the West boundary line of said survey and

THENCE North with said West boundary line to the place of beginning, will contain and embrace the aforesaid quantity of 210 acres.

And being the same tract of land that was conveyed to D. W. Housewright by James Maxwell and wife, Janette Maxwell, June 11, 1975, by deed appearing in Vol. 2, page 352 et seq. of the Deed Records of Collin County, Texas, the original of which deed and the record thereof being here referred to and made of part hereof for all necessary purposes.

The said tract herein conveyed being the South ½ of said 210 acrees containing 105 acres, being the same 105 acres, which is set apart to Hiram A. Housewright in a partition deed dated December 9, 1912, duly recorded in Vol. 198, page 250, Collin County Deed Records.

(B) Situated in Collin County, Texas, and being part of a tract of land patented to Henry Maxwell, Assignee of David W. Williams, April 8, 1853, by Pat. No. 244, Vol. 7, Abst. No. 1021, recorded in Vol. J, page 215, Collin County Deed Records, and dscribed by metes and bounds as follows:

BEGINNING at the Southwest corner of said David W. Williams Survey;

THENCE East with the South line of said Williams Survey 31.5 chains to a stake;

THENCE North 20 chains to a stake in the North line of 76 acre tract of land conveyed by J.B. Daniels et ux to W. L. Boyd by deed recorded in Vol. 103, page 616, Collin County Deed Records;

THENCE West with the North line of said 76 acre tract 31 ½ chains to a post in the West line of David W. Williams Survey;

THENCE South with the West line of David W. Williams Survey 20 chains to the place of beginning, and containing 63 acres of land, and being the 63 acres off the West end of a 126 acre tract of land conveyed to Hiram A. Housewright by E.H. Hendricks et ux on November 18, 1916, by deed duly recorded in Vol. 206, page 272, Collin County Deed Records, said 63 acres also being out of the 76 acre tract once owned by W. I. Boyd above referred to and embraced in the 126 acres so deeded by Hendricks et ux to Hiram A. Housewright.

And being the same tract of land set aside to Hiram A. Housewright et ux in a partition deed of date October 7, 1937, from Hiram A. Housewright et ux to Hattie A. Birmingham et vir.

The two above described tracts of land being the 105 and 63 acre tracts, aggregating 168 acres, described in a deed from Hiram A. Housewright et ux to T.F. Birmingham, dated October 7, 1937,

5. TO HAVE AND TO HOLD the above described premises, together with all and singular the rights and appurtenances thereunto in any wise belonging (it being hereby expressly agreed and understood that out of the grant hereby made, there is excepted and reserved to the grantors, and their heirs, herein, one-half of all oil, gas and other minerals on and under said lands and premises herein described and conveyed, and that any royalty arising from any lease on said lands shall be paid one-half to the Trustees and one-half of said royalty shall be paid to the grantors, or their heirs) unto the said H. A. Housewright, his successors and assigns, in trust, for and upon the following limitations, uses and trusts, to wit:
6. It is our desire that as soon as possible after the execution and deliver of this instrument, but in any event not later than six months after the date hereof, that the Trustees to administer this trust be selected in the following manner, to wit:
7. The Trustees shall be five (5) in number, one of whom shall be the Mayor of the City of Wylie, and one person to be selected out of their respective denominations by that individual or group of individuals who may constitute the local governing body of the Baptist, the Methodist, the Christian, and the Catholic Churches in the City of Wylie.
8. Each of said Trustees shall reside within the limits of the Wylie Independent School District as same now exists or shall here after be changed.
9. Should any Trustees remove from the Wylie Independent School District he shall automatically thereupon cease to hold his Trusteeship hereunder, and a successor shall at once be selected as herein provided.

(10) With the exception of the Trustee that may be such by reason of holding the office of Mayor of the City of Wylie, no Trustee shall, at or during the time of service, be a member of the Board of Trustees of the Wylie Independent School District. Not because we lack any confidence in the ability of the members of the Board of Trustees of said school district to administer said trust, but because the properties in said trust are all farmlands, do we make the provision above.

(11) Upon relinquishment of his office as Mayor of Wylie, for any reason whatsoever, such Trustee shall relinquish his Trusteeship, and his successor as such Mayor shall succeed to his office as Trustee.

(12) In the event any Trustee who may be selected by said local governing body any of said churches above mentioned should fail or refuse to act, then the local governing body of said church so selecting such person, shall proceed to select another in his place, in the same manner and who shall possess similar qualifications of his predecessor.

(13) In the event of the death or resignation of any person who may be then a Trustee, having been so elected by any of said churches, the said local governing body of said church so selecting said Trustee shall at once proceed to name his successor in the same manner and who shall possess similar qualifications as his predecessor.

(14) If, for any reason, the method of selection of the Trustees set out herein be held to be contrary to the laws of the State of Texas, and it should become necessary for any court of competent jurisdiction to name the Trustees to prevent this trust from failing for want of trustees, then it is our intention that such court follow our expressed desires as to the selection of such Trustees, and their successors, as closely as possible.

(15) It is our intention that there shall at all times be five Trustees of this trust. Should any church named above cease to function in Wylie, Texas, so that there is no local congregation of said church in said city, and the Trustee theretofore selected by that church should die, resign, or for any reason relinquish or forfeit his offices as Trustee, and it becomes necessary to name a new Trustee, as his successor, the Board of Trustees of the Wylie Independent School District shall proceed at once to select a new Trustee who shall be of the same faith as his predecessor.

(16) Said Trustees to be first named shall accept this trust by executing and acknowledging an instrument in writing so signifying, and recording the same in the office of the County Clerk of Collin County, Texas, and if it be deemed necessary upon such acceptance the said H.A. Housewright, Trustee, shall execute and deliver to them, and their successors, in trust, a conveyance of the properties described herein to be held and administered in trust under all the terms, conditions and trusts as herein contained.

(17) The Trustee who shall be such by reason of being the Mayor of the City of Wylie, shall act as Chairman of the Board of Trustees of this trust, and he shall have no vote in the management of the affairs of this trust, except when a tie vote of the remaining Trustees shall exist. All powers and trusts herein given to or reposed in the Trustees of the trust herein created, may be executed by a majority of the Trustees for the time being, whether such Trustees are the survivors of those herein named or successor Trustees hereafter appointed to execute this trust.

(18) The Trustees shall not be responsible for any action taken by them in the administration of this trust or for any mistake in judgment nor decreases in value of the trust estate for any cause whatsoever, except from their own bad faith. They shall not be required to give any bond for the faithful performance of their duties hereunder, nor to assume any personal liability in dealing with the trust property. These provisions shall not, however, be so read or construed as to excuse the Trustees from fully and legally performing their duties as Trustees hereunder.

(19) The properties hereby conveyed shall be held, operated, managed and controlled by the Trustees, and the net income therefore used under the terms, conditions, limitations and directions herein contained for the benefit of the Wylie Independent School District, exclusively, in training of all boys and girls who may now or hereafter seek their education at the schools maintained and operated by the Wylie Independent School District, in creating and maintaining at said schools manual training and domestic economy classes and courses, with necessary and useful tools, appliances, equipment and facilities. It is not our intention, and this instrument should not be construed, to give any boy or girl a right to attend or benefit by said classes or courses in violation of the laws of the State of Texas regulating and prescribing the right of attendance of any pupil at said school.

(20) Said Trustees shall operate, manage control and administer said properties in accordance with the directions, conditions and provisions of this trust, and out of the net income from said properties, said Trustees shall:

(A) Maintain the properties of this trust in the best possible condition as to soil conservation and the upkeep and maintenance of the building thereon, and for these purposes our Trustees are directed to use any part or all of twenty-five percent (25%) of the net income from the property each year. Any year that the entire 25% of such net income is not required for such upkeep, maintenance and conservation, that part of the 25% of such net income remaining at the end of such year shall be set up in an emergency fund until there shall be on hand in such fund (same having been accumulated from such excess unexpended portion of said 25% of any years) the sum of Five Thousand ($5000.00) Dollars.

After this amount has been accumulated any of the 25% remaining at the end of any year after properly maintaining the property of the trust, shall be added to the three-fourths of the net income so to be paid to the Trustees of the Wylie Independent School District as hereinafter directed. If said fund shall, by reason of expending all or any part of same, as herein directed, be reduced below such sum of Five Thousand ($5000.00) Dollars, then each succeeding year thereafter, that portion of the 25% remaining after applying same as directed above, shall be added to said fund until there shall again be in said fund such amount of Five Thousand ($5000.00) Dollars. Said emergency fund shall be used for the purpose of rehabilitating any buildings on the lands herein conveyed, in the event same should be damaged or destroyed by fire or other casualty, in taking whatever measures said Trustees deem requisite and necessary to conserve the lands, prevent waste and damage thereto, and to erect such improvements as in the opinion of the Trustees may be necessary. We feel that our Trustees will be fully competent to determine such expenditures as they may, in their judgments, see fit to make from this fund, and except for the admonition that no debt is to be created against the trust, we make no further directions as to the handling of such fund.

(B) After so creating and maintaining said emergency fund, all of the balance of the net income from said properties shall be by the Trustees of the trust paid over to the Trustees of the Wylie Independent School District to be used by such school trustees for the upkeep and betterment of the Mechanical Arts and Domestic Science Departments of the schools of Wylie Independent School District, for payment of salaries of the teachers of said departments, erection of buildings and improvements, purchase and installation of equipment, appliances and materials, payment of other operating expenses, and for such other germane uses as may be determined by them as to provide such departments with adequate personnel and facilities to best instruct the students who may, under the laws of the State of Texas, attend such schools and seek training in these such useful arts.

(21) For us or our Trustees to attempt to curtail by too many restrictions the expenditures of the funds so to be paid to the Trustees of said District would likely result to defeat many purposes of the trust, and as it is our intention that said proceeds of this trust shall enable said school district to render efficient training to the beneficiaries of this trust, we do not intend to and do not here attempt to limit the application of said fund except the same shall be used in such mechanical training and domestic science departments of said school.

(22) In this connection it is also our intention that should, as time goes on, new and different and more technical phases of mechanical training and domestic economy become important and roper subjects, of instruction, that this trust shall not be interpretated as preventing the school trustees from offering such courses.

(23) We do not intend to prescribe what instruction may now or hereafter be classed as instruction in mechanical arts and domestic economy, and such courses or classes in such training as may now or hereafter be generally taught in similar schools, shall be regarded as proper and appropriate subjects of instruction for which said funds to be paid under this trust may be used and our Trustees are to so regard and interpret this instrument.

(24) Before paying said income to the Trustees of the Wylie Independent School District, the Trustees of this trust shall, unless it should be prohibited by the laws of the State of Texas, require the execution of an agreement, duly authorized by the Board of Trustees of such District, in which such District the Trustees shall agree that said trust fund so to be paid over to them will be used for the benefit of the manual training and domestic science departments and the students in such departments of said schools, and in no other way.

(25) Our said Trustees, in addition, shall require that they be furnished each year with a full and complete statement showing the expenditures of all funds so paid to said district trustees with such other information as will enable our said Trustees to know that all of said funds are being used in accordance with said agreement.

(26) If it should ever be determined by any court of competent jurisdiction that said funds may not be so administered by said District Trustees, or should said District Trustees fail to make such agreement or such report, or should they use such funds for some purpose not permitted by said agreement, then our said Trustees named herein shall, unless it be contrary to the laws of the State of Texas, retain all sums which would otherwise be paid over to said District Trustees in their own hands to be administered by them for the benefit of said Mechanical Arts and Domestic Science Departments and the students in said departments as herein directed.

(27) We hereby place certain limitations and restrictions on the powers of our said Trustees who shall administer this trust are to be strictly observed and enforced as follows:

(A) Except for the purpose of oil, gas or other mineral development, in which instance a lease of such mineral interests shall be permitted, but no royalty to be paid thereunder shall be sold, no property of this trust shall ever be sold for any purpose, but shall always be retained by our said Trustees and their successors in this trust.

(B) No part of the properties of this trust shall ever be mortgaged, pledged or encumbered in any way for any debt or obligation of any kind.

(C) None of said property shall ever be exchanged for any other property of any kind.

(D) In the event any of said property should be taken by any public or private corporation through exercise of the right of eminent domain, our Trustees are directed and empowered to use and employ the amount of compensation paid for any property so taken to purchase additional lands adjoining the lands of this trust. In case this is not possible, or, in the judgment of our trustees, is not expedient, then such money received for the property so condemned shall be placed in the emergency fund, hereinabove directed to be created, to be expended by our Trustees when it can best be done to the advantage of the trust, and the purpose, manner and time of such expenditures and the resulting advantages to the trust are left to the sole discretion of our said Trustees.

(E) No Trustee of this trust, nor any person related to any Trustee, within the second degree of affinity or with the third degree of consanguinity, shall ever be permitted to occupy, rent or reside in any building or any property of this trust, nor become a tenant, sharecropper or partner in cultivating or operating any lands of this trust, or shall he reside upon any lands.

(F) No Trustee of this trust shall receive or be entitled to receive or be paid any compensation or benefit directly or indirectly for serving as such Trustee.

(28) Neither the property of this trust, nor the rents, revenues or income therefrom, shall ever be liable, and shall never be taken in execution or by mandamus or otherwise for any debt or obligation or liability now existing, or which may hereafter be created by the Wylie Independent School District, or by the Trustees thereof, whether represented by bonds or other evidence of indebtedness, whether such debt, obligation or liability may arise out of the conduct and operation of the mechanical arts and domestic science departments of the schools of such district, or otherwise, and any anticipation of income from this trust to be subsequently paid over to the Trustees of said District, and in which any obligation or promise may be made to be discharged out of the future income so to be received by such District, shall not ever be binding on this trust, or the properties, rents, revenues or income thereof, and should such anticipated income never be paid to said District, no recourse of any kind shall be had against this trust, the properties, rents revenues or income, or the Trustees hereof, and no person shall acquire any right, title or interest in said fund before the same is actually paid to said District by reason of any sale, assignment, transfer, claim, debt or judgment, whether voluntary or involuntary. Provided, however, that we realize and recognize that a portion of the properties of this trust are now subject to taxation to pay outstanding bonds of the Wylie Independent School District, and in view of this fact, and also because we do not desire to throw any additional burden on the remaining taxpayers of said District, we direct, authorize and instruct our said Trustees to continue to pay the tax levied and assessed against the properties of this trust for the purpose of paying the principal, and interest, and to create such sinking funds as may be required for said new outstanding bonds of said district, and until the same shall have been fully paid off and discharged.

(29) This direction, however, is not intended to, and shall not be construed to render any of the property of this trust, which may be exempt from taxation, liable for any other tax of any kind of said district, whether for maintenance, any other bonds hereafter issued or for any other purposes or for any tax of any other taxing authority of the State of Texas, county, city or otherwise.

(30) For the purpose of this trust, and subject to other provisions hereof, we hereby invest our Trustees and their successors in this trust, with the following powers:

(A) Our Trustees shall have the power, and it shall be their duty to make contracts of lease and to rent the lands of this trust to any person, partnership or corporation, for any time they may desire, and upon any conditions they think best for whatever rental either in money or crops, or interest in crops, they deem best; to receive, receipt for and collect all rents and revenues to be paid under said leases, and to give releases, acquittances and discharges therefor, to take liens for the payment of all rentals in addition to other statutory liens, and to enforce the same, whether by suit or as may otherwise be allowed under the terms of any contract creating such lien; to waive such lien in favor of any agency of the United States, the Department of Agriculture of the United States, or the State of Texas.

(B) To collect all debts owing to said trust and to take whatever steps shall be necessary, either by suit or other legal action, or otherwise, as to them may seem necessary, and the Trustees shall have the power to exercise their honest judgment as to the proper legal proceedings necessary to enforce said claims, or whether legal proceedings shall be taken at all, or whether an accord and satisfaction, compromise or other method be taken to settle such claims.

(C) To render the properties for taxes, as such is specifically limited hereunder, to pay such taxes and take receipts therefor.

(D) To insure, if they deem fit, the properties of this trust against damage and destruction by fire and tornado or other casualty, to pay the premiums therefor and to collect all losses, if any, to adjust such losses by compromise or settlement, if they think best; to rebuild or repair any property so damaged or destroyed and to make all necessary contracts and agreements for rebuilding and repairing, such contracts so to be worded as to constitute the person or persons doing such work independent contractors.

(E) To likewise rebuild or repair any other property damaged or destroyed, if, in their judgment, it is for the best interest of the trust so to do; to make permanent improvements, if they think best; and to make all repairs they consider necessary to any property of the trust, in such instances contracts for same to be with an independent contractor.

(F) To protect and defend this trust and the properties thereof and for such purposes to employ attorneys and to pay their compensation out of the funds in their hands, to institute and prosecute any suits which in their judgment may be necessary, and to execute any bonds or affidavits in attachment, sequestration or distress proceedings, and to pay all costs of such proceedings out of the trust funds.

(G) To lease said properties for oil, gas or other minerals upon whatever terms and conditions they think best, and it shall never be necessary for said Trustees to secure the joinder or consent of us or our heirs in any such lease. The Trustees shall retain all bonus money paid for any of such leases. In this connection we call attention of our Trustees to the fact that "Seventh Tract" of the real estate hereinabove described, is subject to a life estate in favor of H.A. Housewright and his wife, Nora Housewright, and as long as either of them live, our Trustees shall respect their rights as the owners of such life estates in said tract of land, and our Trustees are directed to enter into and execute any agreements necessary for the development and production of oil, gas or other minerals upon said tract of land, as well as agreements for the division of the bonus money and royalty payments to the end that the said H.A. Housewright and Nora Housewright shall receive the full benefit of their ownership of said life interest in said tract of land, and full discretion is vested in our Trustees as to the terms of any such agreements, and their discretion shall be final and not subject to review.

(H) To enter into any agreements or programs promulgated by the Department of Agriculture of the United States, or of the State of Texas, to take whatever steps are necessary to comply with any such program for soil conservation or crop control, to demand, receive, receipt for and collect any and all payments to be made under such programs.

(31) Each and every provision of this statement is to be regarded and construed as so far independent of every other provision. That if it shall be determined that any provision is invalid, such determination

shall not effect the validity of any of the remaining provisions, and this trust shall be administered to carry out, as far as possible, the purposes of the grantors in accordance with the remaining valid provisions, and the enumeration of specific purposes and powers shall not construed to limited or restrain in any manner the meaning of general terms.

(32) Wherever we have in this instrument referred to "net income" from the properties herein conveyed, we have intended to refer to net income from such properties derived from all sources, except from oil, gas and other mineral leases and royalty, which may be paid under said leases, and we intend this instrument to be so construed and interpreted, and all of such net income shall always be paid over to the Trustees of the Wylie Independent School District for the benefit of the students in the mechanical arts and domestic economy departments of said schools, as above provided.

(33) In the event oil, gas or other minerals shall be discovered and produced from said properties, and this trust should receive income from such sources, then it is our desire that so much of the next income derived from bonuses for leases or royalty paid under such leases, which may belong to this trust, as in the sole judgment of our said Trustees shall be best, shall be by our Trustees, or their successors, paid over to the Trustees of said district for the benefit of the boys and girls attending the schools of said district, in maintaining and operating said schools

and all various departments thereof, in payment of salaries of teachers and faculty, construction or erection of buildings, purchase and installation of equipment and appliances, furniture and fixtures, payment of necessary operating expenses, and all other purposes for which the funds, either local maintenance, or State aid of said District, may be lawfully expended.

Re: Cause No. 1209-90

Trustees of F. O. Birmingham Memorial Trusts vs. Wylie I.S.D.

The Court recognizes that there has been, from time to time, expectations or at least hopes that this case would settle or the issues reduced. The Court has been asked to decide the motions for summary judgment heard more than 2 years ago, and there being to no settlement or agreement as to how certain of the issues can be resolved, the Court renders summary judgment as follows. The judgment is a declaration of the rights of the parties as they relate to certain trust instruments. These instruments are not ambiguous, and the Court has endeavored to declare their clear meaning in the disputed areas.

This summary judgment is only partial and does not resolve certain fact issues raised by the pleadings and upon which no application for summary judgment was filed. Therefore, the remaining issues are to be set for trial to be tried within 60 days, if not resolved sooner.

The Court declares as follows:

1. The trusts determine the course areas to which the trusts relate. The areas are mechanical arts, domestic economy, advanced American History and Chemistry. No net income received from the trusts by WISD can be spent except within these four course areas.
2. Within those four course areas, the trustees of the WISD (hereinafter referred to as WISD) determine the courses to which the net income from the trusts are to be applied, and this may vary from time to time by additions and deletions of courses within those areas as the times and circumstance require, as determined by WISD within the four course areas. The trustees of the trusts do not make this determination; WISD does, subject to the requirement of the trusts and within the four course areas.
3. No portion of the net income by either trust to WISD can be used for bonds, obligations, or debts of any kind, except those existing at the time the trusts were created. The money paid, or to be paid, may not be pledged or hypothecated, obligated, promised or any other way encumbered by the trustees of the trusts or by WISD.
4. The trusts do not distinguish between the categories of replacement or supplanting of funds and supplementing funds. The obligation of the beneficiary WISD is to use the net income received from the trusts within the four course areas, among other obligations. The trust allows latitude on the part of WISD, and no part of the trusts are conditioned on whether WISD receives or doesn't receive funds from any other source relating to the four course areas.
5. "Net income" is only vaguely defined by the settlors of the trusts by excluding certain income (namely: oil, gas and other mineral leases and royalty which may be paid under such leases) from the definition of net income. This distinction was made by the settlors because income from mineral leases and royalty payments is administered in ways different from the "net income" involved in this case.

   The settlors refer to a responsibility of the trustees to conserve, keep and maintain the trust property, and so expenses for that purpose are correctly chargeable against gross income. This would include those charges permitted by the Trust Code subsection 113.111 except where there is direct conflict between the statute and the terms of the trusts (e.g. compensation for trustees).

   Once net income is thus established, the trustees fund the "emergency fund" per the trust instruments, and then pay over all the rest of the net income to WISD as provided in the trust instruments.
6. A claim to modify the trusts pursuant to subsection 112.054 of the Trust Code is not barred by limitations, by estoppel or by res judicata.
7. Issues of whether the parties complied with the trust requirements, allocated net income correctly, are to reimburse the trusts, or expended net income contrary to the provisions of the trusts are all fact issues to be resolved.

SIGNED this the 28^th day of February, 1994.