Untitled Texas Attorney General Opinion

- - R-821 ‘THEATTORNEY GENERAL OFTEXAS Hen. Ben J. Dew opirdon RO. v-398 Dlrtrtot Atto+‘nq Steplwas County, 10: sbee, of a county Judge Brebkenrl~e, Texas wh ean ldmlilitr oa fto r a nesta brig, te probate.6 o r r hUnited, er th e Qoa v- 0r nB aB oltnds.’ Your request ror an oplnloa iroB this offloe on the above eubjeot matter 1s in part as follor~i “3x1 the light of the forego authorl- ties and opinions of the Attorhey“zr enoral, please advlee whether or not the County Judge of Young county, lo entitled, to oolleot one- half of one per cent fees vhere.the Admini13- trator of an estate in that County has oeshed Uaited State8 Qkernrent E bonds and United States Qovernment ff Bonds belonging to such eatate ao admInistered in the probate court.” We quote the following pertinent statutory pro- vlslonst “Art. 3926. “The county judge s&ill also receive the following fees: “1 . A commlsslon of one-half of one per cent upon the aotual oaah reoeipts of each executor, edninistrrtor or guardian, upon the approval of the exhibits end the final settle- ,rent of the account of such executor, rmnis- trator or guardian, but no more thsn one such oorrission shall be charged on any mount re- ceived by any yh executor, adainlatrator or guardian. . . . “ht. 3689. “Executors end admlniatrators shall be Hon. Ben J . Dean - Page 2 (V-398) entitled to receive and may retain in their hands five per cent on 811 sums they may actually receive in cash, and the same per cent on all sums they may pay out in cash in the course of their administration.” “Art. 3690. “A commlseion shall not be allowed or received for reoelvlng my cash which was on hand at the time of the death of the tertator or intestate, nor a oommiaslon for receiving money,realized from the sale of property to satisfy debts against the pro- perty and the paying out of the proceeds in satisfaction of the debt exoept as to the amount realized from the sale In excess of the debt, nor for paying out money ,to the heirs or legatees as such, Provided, how- sver, that if the administrator or executor shows to the court that the value of the servloe rendered the estate in making e sale of property seourlng a debt exceeds the a- mount of the commission oaloulated as above provided, then the court shall allow a com- mission for a just amouut. The amount not to exceed that now allowed by law.” In construing the above quoted statutory ro- visions, it was held In Willis v. Harvey, 26 3. W. Ip24 288, vrit refused, that there is no difference in the meaning of the terms “actually received in oash” CLSused in Article 3689 and “actual cash receipts” as used In Article 3926. It was further held that the ‘receipts” did not embrace cash on deposit in the bank at the death of the testator. ,It was held in Terrlll v. Terrlll, 189 3. W. (26) - 877, writ refused, that Postal Savings Stamps owned by testatrix at the time of her death should be classified as “cash on hand” within the meaning ,of Article 3690 Instead of “sums actually reoeived In cashl’ within the meaning of Article 3689. We quote the following from the Terrill case: “It seems that the executor did not claim a commission upon the $600 in his itemized re- port to the legatees of the estate. The county Court held, however, that he was entitled to re- tain five per oent of sald~amount. In this Hon. Ben J . Dean - Page 3 (v-398) holding the Court erred. This $600 was in the form of Savings Stamps, United States Post Office, which were purchased by de- cedent and held by her at the time of her death. These stamps were an obligation of the United States Government, payable upon demand. The executor did not sell these stamps but cashed them. He merely exchanged one form of a government obligation for an- other. We think this $600 in Savings Staraps Is properly classified as cash on hand at the time of the death of the testatrlx with- in the meaning of Article 3690, Vernon’s Ann. Olv. Stats .I’ Following the reasoning In the Terrlll oase, it Is our opinion that when the Administrator of an ea- tate oashes United States Government Bonds, he merely exchanges one form of a government obligation for an- other. Therefore, such sums should bB classif,led as cash on hand at the time of the death of the testator, and the county judge Is not entitled to any fees under Article 3926 on said sum. Attorney General’s Opinion No. o-5704, which was written prior to the holding of Terrill v. Terrill Is hereby overruled. SUMMARY A County Judge Is not entitled to fees or commissions under Article 3926 when the Administrator of an estate being probated cashes United States Government Bonds. Ter- rill v. Terrlll, 189 S. W (26) 877, writ re- fused. Yours very truly APPROVED: ATTORNEY GENERALOF TEXAS . FIR ASSISTANT “ATT ;1-& RNRYGENRRAL Assistant JR:djm