TEEAYTORNEYGENERAI.
OF TEXAS
Ausm 11. T-a
FVILL WILSON
AlTo- OENERAI.
June 10, 1961
Honorable Durney Walker Opinion No. ~14-1076
District Attorney
Mc,Lennan County Re: What constitutes “actual
Waco, Texas cash receipts” as such
term is used in Article
Dear Mr. Walker: 3926, v,c.s.?
You have requested an opinion from this department on
the construction of Article 3926, V.C.S. You state, “the
question to be resolved is determining the scope and definition
of 'actual cash receipts.‘”
Article 3926, V.C.S., provides in part as follows:
“The County Judge shall also receive
the following fees: 1. A commission of
one-half of one per cent upon the actual
cash receipts of each executor, administrator
or guardian, upon the approval of the exhi-
bits and the final settlement of the account
of such executor, administrator or guardian,
but no more than one such commission shall
be’charged on any amount received by any
such executor, administrator or guardian.”
(Emphasis added).
You have cited several cases which we will discuss in
connection with this opinion.
In the case of Lyles v. Oheim, 138 Tex. 333, 159 S.W.2d
102 (19&2), the question before the court was whether the commis-
sions to be paid a County Judge under Article 3926, on the receipts
of an estate, were to be paid to the County Judge who,made the
orders and approved the proceedings for the sale of the property
belonging to the estate, and who was in office when such estate
and its administrator received the receipts derived from such
sales, or whether such commissions were to be paid to the County
Judge who later acted upon the annual account filed by the adminis-
trator of such estate. The point was not raised as to what consti-
tutes “actual cash receipts”, but the commission was paid on the
full amount of receipts received from the sale of the corpus of
the estate and it seems that both parties to the suit as well as
the court agreed that this was the proper amount of commissions
to be paid.
Honorable Burney Walker, Page 2 (Opinion No. ~~-1076)
The term “receipts” does not embrace cash on deposit in
the bank at the death of the testator. The term “actual cash
receipts” should be held to specifically describe money re-
ceived by the executor other than the cash or corpus of the
estate which was on hand when the testator died. WilliS v.
Harvey, 26 S.W.2d 288 (Civ.App. 1930, error ref.)
In the case of Goodwin v. Downs, 280 S.W, 512 (Tex.
Sup. 1926), the Court held that the County Judge was entitled
to a commission on actual cash receipts received by the adminis-
trator while completing the road construction contracts of the
decedent; and that the time and manner of distribution thereof
did not affect his fees, since he received no commission on
disbursements.
In McCrory v. Wichita County, 261 S.W.2d 867 (Civ.App.
1953, error ref.), the Court said in effect that the County
Judge is not entitled to commissions on the “estate first
delivered”
_ , and when the. ward’s sole interest
_ in. the corpus
of tne SState was tne rignt to reCeiVe a Ulstributive share
of the funds upon liquidation, the “estate first delivered”
to the guardian was the distribution made to her by the
trustee and the amount so received was not “actual cash receipts”
but was the corpus of the estate. If this distribution had
been in the form of property other than money and the property
had been sold after coming into the hands of the guardian then
the proceeds would have been “actual cash receipts” and would
have been subject to the commission.
It is our opinion that “actual cash receipts” as used
in Article 3926, V,C,S., does not mean the receiving of the
corpus of the estate by the executor, administrator or guardian,
which includes both real and personal property (including cash),
but only means cash received from the sale of the corpus of the
estate, or a part thereof, and all moneys received during the
course of the administration from rentals, royalties and other
revenue derived from the estate received.
SUMMARY
Actual cash receipts as used in Article
3926, v.c.s., means cash received during
the course of the administration from the
sale of the corpus of the estate, or a
part thereof and rents, royalties and
other revenue derived from the estate and
does not include the corpus of the estate
Honorable Burney Walker, Page 3 (Opinion No. w-1.076)
received by the executor, administrator
or guardian, whether same consists of
real or personal property (including
cash).
Yours very truly,
WILL WILSON
Attorney General of Texas
J. H. Broadhurst
Assistant Attorney General
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Sam Wilson
Martin DeStefano
Ray Loftin
Jerry Roberts
REVIEWEDFOR THE ATTORNEYGENERAL
By: Morgan Nesbitt