A-tiwm~ IL -lkx~s
March 5, 196.5
Honorable Joe Resweber Op;nion No. C-396
County Attorney
Harris County Courthouse Re: Whether ,there is any pro-
Houston, Texas 77002 vision under the Escheat
Law of Texas whereby an
es,tateof $l,lOO.OO or a
portion thereof which has
been in administration for
approximately 20 years
can escheat to the StaCe
'of Texas when there are
approximately 150 known
heirs and an unascertain-
able number of unknown
heirs and the ekpense of
ascertaining the unknown
heirs would far exceed the
amount of money in the
Dear Mr. Resweber: estate.
In your recent letter you have requested the opinion of
this office on the following question:
"Is there any provision under the Escheat
Law of Texas 'wherebyan estate of $l,lOO.OO or
a portion thereof which has been in administration
for approximately 20'years, can escheat to the
State'of Texas when there are approximately 150
known heirs and unascertainable number of unknown
heirs, and the ex,penseof ~ascertainingthe unknown
heirs would far exceed the amount of money In the
estate?"
Recourse to the authorities on the.common.law reveal that
the term "eacheat" has its origins ln.the French language and,
at common law, it designated the process whereby real property,
held by tenure, reverted to the lord,of the fee.upon the death
of the grantee without heirs. Personal property was governed
by the doctrine of "bona vacantla" which authorized the taking
by the crown of property that was ownerless,or abandoned.
These prerogatives of the crown at common law as developed
and applied in the United States are generally combined under
the single term i "escheat." Origins and Development of Escheat,
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Hon. Joe Resweber, page 2 (C-396)
61 Colum. L. Rev, 1319 (1961); Modern Rationales of Escheat,
112 U. Pa. L. Rev. 95 1963); Bona Vacantia Resurrected, 34
Ill. L. Rev. 171 (1939 .
Until 1961 our principle statutory provision relating to
the escheat of the estates of decedents was Article 3272 of
Vernon's Civil Statutes, which provides as follows:
"If any person die seized of any real estate or
possessed of any personal estate, without any
devise thereof, and having no heirs, or where the
owner of any real or personal estate shall be absent
for the term of seven years, and Is not known to
exist, leaving no heirs, or devlsee of his estate,
such estate shall escheat to and vest In the State.
Where no will Is recorded or probated in the
county where such property is situated within seven
years after the death of the owner it shall be
prima facie evidence that there was no will, and
where no lawful claim is asserted to, or lawful
acts of ownership exercised in, such property
for the period of seven years, and this has been
proved to the satisfaction ~of the court, it shall
be prima facie evidence of the death of the owner
without heirs. Any one paying taxes to the
State on such property either personally or
~through an agent, shali be held to be exercising
lawful acts of ownership in such property within
the meaning of this title, and shall not be
concluded by any judgment, unless he be made a
party by personal service of citation, to such
e~scheatproceedings, if a residentof this State,
and his address can be secured by reasonable
diligence, but, if he be a non-resident of the
State or can not be found, the personal service
of citation shall be made upon any agent of such
claimant, if such agent, by the use of reasonable
diligence can be found; such diligence to Include
an investigation of the records of the office and
inquiry of the tax collector and tax assessor
of the county In which the property sought to be
escheated Is situated."
You state in your brief that the person whose estate is
under administration died intestate In 1943 and it appears that
there were In excess of 150 known heirs and an unascertainable
number of unknown heirs. According to Article 3314 of Vernon's
Civil Statutes, which was in effect at that time and is Identical
to Section 37 of the Texas Probate Code:
-1865-
-
Hoi. Joe Resweber, page 3 (c-396)
1,
whenever a person dies Intestate, all of
his isia;e shall vest immediately in his heirsat
law but with l;heexception aforesaid shall still
be ilable and ,subjectin their hands to the payment
of the debts of the intestate; butupon the Issuance
of letters testamentary or of administration upon
such estate, the executor or administrator shall
have the right to possession of the estate as it
existed at the death of the testator or intestate,
with the exception aforesaid; and he shall recover
possession of and hold such estate In trust to be
disposed of in accordance with ,law."
Consequently upon tha Instant of the death of the inte-
state title to his ropert vested in his heirs at law. Loller
&r&t 38 Tex 206 (18737. Carroll v. Fidelity & Deposim
ltisd 771 (+ex.Civ.App.'l937 error ref ) Since there
were heirs of the ,decedent who to&k title to-his property at
his death even though,sone may,be unknown there was no escheat
of his es&ate under the provisions of Artl&le 3272.
In view of the fact this administration has been pending
for so many years and the admini.stratormerely possesses the
property in questionas trustee for the heirs who are vested
with title, we must consider whether ,title to,any of the property
possessed by the administratorhas possibly escheated.to,the
State from any of the heirs of the decedent.
If facts exist whi.chw,ouldraise,the presumption under
Article 3272 that any of.the heirs of,the dec,edenthave them-
selves died intestate and without heirs, the,nin our opinion
that portion of the decedent's property which vested in such
heirs would'be subject ,to escheatunder such Article.~
In addition, we further point out that in 1961 further
legislation pertaining to escheat of personal property'was
enacted In the form of Article 32,72a,ofVernon's Civil Statutes.
Basically, this Article provides for the reporting to the
State of perscnal property subj.ectto escheat and further
provides for the~presumption of abandonment and escheat of
the personal property reported.
Section l(c) of Article 3272a defines the term "subject
to escheat" as follows:
"The term %ubject to e~scheat'shall include
personal property presumed to be subject to escheat
by the prima facie conclusions contained in Article
3272, including all ,personalproperty (1) of which
,-1866-
Hon. Joe Resweber, page 4 (c-396)
the existence and whereabouts of the owner are
unknown and have been unknown to the holder for
more than seven (7) years and (2) on which, from
the knowledge and records of the holder it appears
that no claim or act of ownership has been asserted
or exercised during the past seven (7) years and
(3) on which no will of the lastknown owner has
been recorded or probated in the county where the
property is situated within the past seven (7)
gears."
The reports under Article 3272a are to be filed by the
-..
persons who hold such personal property. Sectlon l(a) of
Article 3272a defines "person" and specifically Included there-
in is'the'term estate. In our opinion, any personal property
held by the admmator in question which comes within the
definition of "subject to escheat" in Section l(c) of Article
3272a would be subject to being 'reportedand escheated pursuant
to the procedures provided under Article 3272a or under the
alternate procedures provided for in Article 3273 of Vernon's
Civil Statutes.
Therefore, we answer your question by stating that any
property held by the administrator of the estate in question
'which1s held under the conditions s,pecifiedin Articles 3272
or,'3272aof Vernon's Civil Statutes Is subject to escheat
thereunder.
.In so answering your question we are not unmindful of the
holdings in Ball v. Claiborne, 27 Tex. 217 (1863); Wiederanders
v. State, 64 Tex. 133 ltM5); State v. Black's Estate, 51 S W
m.Civ.App. 1899 ; and Glllettes Estate v. State 286' '
S.W. 261 Tex.Civ.App. 1926, afflrmed 5 S W 2d 131 (Te$.Comm.
App. 1928 f to the effect that an escheat priceeding in district
court ~cannot be maintained while administration is pending
upon an estate. These holdings were based upon the fact that
the statutes relating to escheatproceeding at the time these
actions were brought, required that it be alleged and proven
that no letters of administration of the estate of the intestate
who had died without heirs had been granted.
This statutory requirement no longer exists it having been
omitted from Article 3273 by the Legislature In &he Revised
Statutes of 1925. Therefore, we no longer consider these cases
as authoritative upon this question.
-1867-
. -c
Hon. Joe Resweber, page 5 (c-396)
SUMMARY
Any property which is held by the administrator
of an estate under the circumstances specified
in Articles 3272 or 3272a of Vernon's Civil
Statutes is subject to escheat.
Very truly yours,
WAGGONER CARR
Attorney General
BY
Assistant
WOS:ml
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Pat Bailey
George Black
Harold Kennedy
Jim Briscoe
APPROVED FOR THE ATTORNEY GENERAL
By: Stanton Stone
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