Mr. Charles J. Lleck, Jr. Opinion No. W-664
Criminal District Attorney
Courthouse Re: Whether payments from
San Antonio, Texas Workmen's Compensation
and Social Security bene-
fits received by a ward,
arising out of the death
of her father, are subject
to the payment of commls-
slons to the County Judge
under the provisions of
Article 3926, Vernon's
Dear Mr. Lleck: Civil Statutes.
We quote from your letter of June 5, 1959:
"'In an estate of a minor, the Probate
Clerk has presented a bill of costs which
includes County Judge's Commission of -3of
1% on the amount shown as receipts in the
annual account filed in this estate. This
fee has been taxed as part of the costs on the
ward's receipts from Workman's Compensation
Claim, payable on the death of her father, and
the ward's interest in Social Security benefits
by reason of her father's death.
"'I request an opinion from you on the fol-
lowing question:
"'DO the payments from a Workman's Com-
pensation Claim, payable on the death of
the father, and the ward's interest In
Social Security benefits by reason of the
father's death, represent corpus of the
estate or income?'"
Mr. Charles J, Lieck, Jr., page 2 (~~-664)
Section 1 of Article 3926, Vernon's Texas Civil Statutes,
provides 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 theism
annroval of the exhibits anr the final settle-
ment of the account of such executor, adminls-
trator or guardian, but no more than one such
commission shall be charged on any amount
received by any such executor, administrator
or guardian." (Emphasis ours.)
In Anderson v. Steddum, 194 S.W. 1132 (Clv. App. 1917,
affirmed by memo opinion, 222 S,W.'lOgO flomm. App. lg?o; It
was held that a nension paid to a ward under the laws of the
United States was not Income to the estate but the corpus of
same, and that, therefore, the guardian could not expend such
moneys for education and maintenance of the ward without an
order of the Probate Court. The Court stated at page 1134 of
the opinion:
I, * 0 As appellee owned nothing except
tbepenaion mney,~.unless that was an estate
he owned nothing from which an income could
arise. If it was an 'estate,' and, clearly,
it was, of course it was not 'income of an
estate' for it could not be 'income from
an estatel'if it was the estate itself. It
follows, we think that the fund in appellant's
hand as ,&id'not 'income' of appellee's estate,
D D D1,
Later in Goodwin v, Downs, 280 S.W, 512 (Comm. App. 1926)
it was held that the Countv Judne was entitled to a commission
upon money received by an adminrstrator In the fulfillment of
a road construction contract of the deceased. The cash receipts
from the contract were viewed as Income. It Is important to
note that at the time the administration was taken out the
construction contract had been entered Into by the deceased,
but not performed. The work was performed and the contract
oompleted at the instance of the administrator after the com-
mencement of the administration.
Mr. Charles J. Lleck, Jr., page 3 &w-664)
The facts presented by your request are unlike the
situation before the Court in Goodwin v. Downs, supra, be-
cause here the circumstances which gave rise to the claims
materialized prior to the commencement of the guardianship.
In the instant situation the death of the father prior to
the guardianship created a right on the part of the ward
to claim the Workmen's Compensation benefits and the Social
Security benefits. In Goodwin v. Downs, supra, the right
to claim the benefits of the construction contract did not
accrue until the work was performed and the contract com-
pleted during the administration.
Thereafter, In Willis v. Harvey, 26 S.W.2d 288 (Civ.
APP. 1930, error ref.) a County Judge was denied a commission
on cash on deposit in a bank to the credit of the testatrix
at the time of her death.
Monthly disability payments from the United States
Veterans' Administration to a veteran for whom a guardian
had been appointed were held in Bagwell v. McCombs, 31 S.W.
2d 835 (1930) to constitute the corpus of the estate. In
the opinion it was stated at page 837:
If
. . . While the estate consisted
entirely of the monthly allowances made
by the United States government to the
ward, it was nevertheless the corpus of
the estate and not income from an estate.
It is also an estate fromwhich there was
no income, and any expenditures for the
benefit of the ward must be made from the
Anderson v. Steddum
ii~~~i~fA~~~)eS~~teS:W.1132."
In Gilbert v. Hines, 32 S.W. 876 (Clv. App. 1930) a
guardian claimed a commission upon moneys paid to the guardian
by the United States Veterans t Bureau as monthly disability
compensation accruing to the ward over a period of years and
upon moneys paid to the guardian by the United States Veterans'
Bureau under a policy of war risk insurance. The Court held
that the monthly disability paymenta made by the government
were part of the corpus of the ward's estate, citing Dagwell v.
McCombs, supra, and Anderson v. Steddum, supra. The Court
f'urtherheld that the moneys paid to the ward under the policy
of war risk insurance were part of the corpus of the estate,
stating at page 878 of the opinion:
Mr. Charles J. Lieck, Jr., page 4 (w-664 )
"In the instant case the ward's claim
for war risk insurance, subsequently enforced
by appellant as guardian, existed as such claim
at the time appellant was appointed and quali-
fied as guardian. . We think unquestion-
ably, though a chose in action at the time ap-
pellant was appointed guardian, the insurance
claim was a part of the corpus of the ward's
estate. . . . The word 'estate' includes
claims that are mere chases in action and are
alone sufficient warrant for instituting ad-
m7nistration oroaeedinqs in a probate court.
fliting ~uthorltie~
"We, therefore, hold that the claim for
war risk insurance was a part of the corpus of
the estate, and, when this claim was later con-
verted into money and paid to the guardian, Its
status, as a part of the corpus of the ward's
estate, was unchanged, and no commissions to
the guardian could be allowed thereon. Anderson
V, Steddum (Tex.Civ.App.) 194 S.W. 1132; Bagwell
v. McCombs, Guardian (Tex.Civ.App.) 31 S.W. (2d)
835; Freedman v. Vallie (Tex.Civ.App.) 75 S.W.
322."
The case of McCrory v. Wichita County, 261 S.W.2d 867
(1953, error ref.) held that moneys received by a guardian and
constituting the ward's share of periodical distributions from
the liquidation of a trust are not "actual cash receipts" with-
in the meaning of Article 3926, Vernon's Texas Civil Statutes,
and that the County Judge was, therefore, not entitled to a
commission on such sums, The decision relied upon Willis v.
Harvey, supra. The following language of the court in the Willis
case was quoted with approval at page 289:
1,
0 * 9 It is thought the term 'actual cash
receipts' should be held to specifically describe
money received by the executor other than the cash
or corpus of the estate which was on hand when the
testator died, e a ."
In the McCrory case it was further stated at page 869:
"The 'estate first delivered' to appellant
was the distribution made to her by the trustee.
a e * As guardian, she could not have claimed a
. --
Mr. Charles J. Lieck, Jr., page 5 (WW-664)
commission on the estate first delivered.
,I
. . .
"But if It could be said that the ward's
estate 'first delivered' to appellant consisted
of ownership in the properties conveyed by the
trustor to the trustee, rather than in the share
distributed to her by the trustee, the funds
distributed would nevertheless be the corpus
of the ward's estate. It would be the same estate
in a different form, and would be only Once Pe-
ceived. Gilbert v. Hines, Director of 0. S.
Veterans' Bureau, Tex.Civ. App;, 32 S.W. 2d 876;
21 Tex. Jur., P. 352, sec. 95.
It was also held in McCrory v. Wichita County, supra,
that the provisions of the statutes relating to commissions
to be paid to executors, administrators and guardians are
indicative of the legislative intent expressed in Article
3926, Vernon's Texas Civil Statutes, relating to commissions
to be paid to the County Judge upon actual cash receipts of
an estate. Hence, the case of Gilbert v. Hines, ~up~a, while
relating to the commission to which a guardian is entitled
on an estate of his ward, serves to reflect the lnterpreta-
tion which should be given to the statute s$lowing County Judges
commissions upon the actual cash receipts of an estate.
In the present situation the ward's interest in the
Workmen's Compensation claim and her interest in the Social
Security benefits were in existence at the commencement of
the guardianship, both claims having arisen from the death
of her father prior to the guardianship.
From the cases cited above, It is abundantly clear
that since these claims and the money into which they were con-
verted constitute the estate first received by the pardian,
they cannot also be income or "actual cash receipts from the
estate, but must be viewed as the corpus thereof. Accordingly,
it is our opinion that these payments from a claim for Workmen's
Compensation and a claim for Social Security benefits represent
the corpus of the ward's estate. They are, therefore, not subject
to the payment of commissions to the County Judge under the pro-
visions of Article 3926, Vernon's Texas Civil Statutes.
Mr. Charles J.'Lieck, Jr., page 6 @w-664)
i
‘:
___- O-l@,;5
""'.~~"Atto??ieyGeneral's Opinions'0-5495 (1943) and _ ____
(1939) are hereby overruled to the extent that the;7 are in
conflict wlth,this opinion.
SUMMARY
A County Judge is not entitled to
a commission under Article 3926,
Vernon's Texas Civil Statutes, on
moneys received by a guardian as
benefits to the ward on a claim for
Social Security and a claim for
Workmen's Compensation, both such.
claims arising from the death of
the ward's father prior to the
guardianship, because the claims
and moneys derived therefrom are
part of the corpus of the ward's
estate.
Very truly yours,
WILL WILSON
Attorney General of Texas
Henry G. Braswell I
HGB:mg:zt Assistant
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
William E. Allen
Elmer McVey
C. Dean Davis
Marvin H. Brown, Jr.
REVIEWED FOR THE ATTORNEY GENERAL
BY: W. V. Geppert