- -
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