Untitled Texas Attorney General Opinion

R-931 TEEATTORNEYGENERAL ow TEXAS AUSTIN PI. TEXAS December 16, 1947 Hon. John Ii.Winters Executive Direotor Department of’Public Welfare Austin, Texas Opinion HO. v-456 Re: Facts to be taken Into considerstlon in passing on an appllcatlon for Old Age Assistance in the given case W. B. Blggs died testate, leaving certain property to his two sisters and mentioning Chas a H. Blggs, the applicant for Old Age Assistance. Subse- quently the sisters died Intestate. Out of these faots arise the following questions propounded by you: “1. Does the provision In the will requiring the sisters to sup- port and maintain the applicant -for the remainder of his life constitute a lien against the property to such an extent that the corpus of the es” tate can be used for the maintenance of the applicant? "2. In view of the fact that the estate would eventually be de- pleted If any portion of It were sold, can the heirs, under the terms of the will, sell zany portion of the corpus of the estate and use the proceeds for our appllaantls maintenance? “3. If, under the terms of the ~111, they might sell the corpus of the estate for his maintenance, but are un- willing to do so, could the department Hon. John E. Winters - Page 2 (v-456) consider this as a potential avall- able resource for meeting the needs of our applicant?" We note from a copy of the will which ac- companied your request that the second through the fifth Items provide for the distribution of the testator's property, both real and personal. The principal beneficiaries were the two sisters of.the testator. The sixth provision of the will is as follows: 'SIXTH. The properties here Fn willed to my two sisters, Mrs. M. 5. ' Montgomiry and Mrs. Sallie E. Henry are so willed with the understanding and agreement on their part, that they will jointly take care of my brother Chas. H. Biggs during his lifetime, provide him a home and the necessities of life." Your first two questions relate to the na- ture of the Interest which may have been created In behalf of Chas. Ii.Blggs. In vlew of our answer to your third questlon which follows, we do not find it necessary to answer questions one and two. Art. 695c, Sec. 20, V.A.C.S., provides, In part, as follows: %eo . 20. Old Age Assistance shall be glven under the provisions of this Act to any needy person; “(5) Who has not sufficient Income or other resources to provide a reasonable subsistence compatible with health and de- cency. Provided that In consideration of lncoie and resources actually available to the applicant the State ageno,yshall not evaluate Income and resources which mas be available only to the relatives of the-ap- pllcant. Income and resources to be taken Into consideration shall be known to exist and shall be available to the appllcant.An applicant for Old Age Assistance shall not Hon. John H. Winters - Page 3 (V-456) be d‘eniedassistance beoatie of the existence of a child or other rela- tive, except husband or wlfej whg Is able to contribute to the appllcant*s support, and no Inquiry shall be made Into the financial ablllty of ~sa$d child or other relative, exb&t hus- band or wife, in determining the appli- cant's eligibility. The applicant's child or other relative, exoept'or hus- band or wife, is %o be treated by the State Department In the'same way as any person not related to the applicant; any aid or contribution to the applicant from such child or other relative, except husband or wife, must actually exist In- fact, or with reasoheble dertaintg. be a- vailable in the future to oonstltute a resource to the applicant." (Emphasis ad- aed) The reading of certain cases would indicate that a trust or lien was created by the will In favor of the claimant. ;Busb t!v. Lynn, 37 Tex. 146; (liodard Godard 197 S.W: (267554; Low v. Ra~maey 122 S.W. 11i7. On ihe other haad, other cases Indicate that no trust or lien was created. Brannon v. Morgan, 106 S.W. (2a) 841; Darragh v. Barmore, 242 S.W. 714. If the holders of the property are falling and refusing to furnish maintenance and support for the cla,lmanta difficult lawsuit will be required to deter- mLne the correctness of such action. Undersuchclrcum- stances, we do not believe the aid to the olalmant ex- ists or Is navallable" with reasonable certainty. The expressed Intention of the Legislature was to restrict the Department of Public Welfare to a con- sideration of resources actually available or reasonably certain. Assuming, but not deciding, that the applicant does have a lien on the property in question, It Is oer- talnly a rather tenuous claim, and could not be consider- ed an existent source of support. It would be contrary to the general spirit of the Old Age Assistance stetute to enlArge the quoted pro- vision so as to include money or property not aotually received but-that which poteutlalbmlght be received. Therefore, you are %?espectfullyadvised that the Department of Public Welfare shoti& not take tnto l .. Hon. John Ii.Winters - Page 4 (v-456) consideration any Interest which Chas. H. Blggs may have received under the will of his brother In pass- ing on the applloantls qualifications for assistance. SUMMARY Under Art. 6%c, Sec. 20 (5), V.C.S., the Department of Public Welfare should not consider any potential resouroe of an-ap- pllcant for Old Age Asslstance,which h@s not been aotuallg received or is not a:rka- sonably certain available source of support. Yours very truly' ATTORREYG~BRALOF TEXAS - 1CartlnHarris Assistant APPROVED: .i