HE A OR~'EY GENERAL
OFTEXAS
Hon. J. D. Looney
Countg.AudiFor
Boston, Texas
Dear Sir: Opinion No. C-5704 “’
Re: Whether conversion into ca’kh of U-S;
Government bond’5 owned by an estate&
gives rise to “actual cash receipts
upon which the county judige would
be entitled to 8 commissfon of tine-
half of one per cent under Article
3926, R.C.S.
Your letter or MaPch 31, 1944, requesting the opinion
of this department upon the above stated question Peaas as
follows:
“Since receipt of your Opinion No. O-5654, dated
November 8, 1943, written by Mr. J. Arthur Sandlfn,
ana approved by you as First Astilstant Attorney Gen-
eral, construing Art. 3926 RCS as applied to the facts
submitted by me relative to commissions of County
Judge on liquiaa,ting alvlaenas in the amount of
$255;659.80 as reported by Mrs 0 Helen Seeger, Aamin-
istratrlx of the Estate of W, J. Buchanan, Deceased,
.9 further questfon has arisen with respect to the
sppllcabillty of the County Judge’s commissions under
Art 0 3926,to U, S. Government Bon& .whfch were sold
bg the Adminlstratrix in order to pay Federal Estate
taxes and Texas Inherftanoe taxes,
“The AdminfstPatrix sold U.S. Government Bonds
to the amount of $3,136,06g.‘J.4 in order to raise mocey
tb help pay Federal Estate taxes and Texas Inherftance
taxes Q These bonds were sold without getting an order
of the Court, but are Pepopted, in Exhibit B of the
fPrst’ annual accounting of the Aclmfnistratrfx undar
Capital Receipts along with seven other Items of cash
receipts. A copy of Exhibit B fs aMached hereto.
~“Counsel for the Administratrix now contends
that cash receipts from the sale of these bonds is not
subject to one-half of one per cent conrmission for tka
County Judge un&er Apt. 3926 RCS because said bon& were
Hon. J. D. Looney, page 2 o-5704
bold for the purpose of ralslng money to help pay taxes,
and further because counsel claims the U.S. Goternmtint
held a lien on said bonds for the payment of said taxes.
“You,.*’opinion No, 0-5654, as above referred to,
is a very comprehensive one; and under this oplnlon it
is my contention and. also. that. of the County Judge that
said commission is appllcable’to cash receipts realized
from the sale of these bonds as set pouterabove, regard-
less of whether they were sold to pay taxes or whether
OP not the U. S, Government had a lien on them for the
payment of taxes,
“The County Judge’s cominlsslon has already been
paid by the Admlnlstratrix~on all Items showiildiaer
Capital Receipts an&Income Receipts of~‘the’attached copy
of Exhlblt B of the aforementioned annual accOunt, with
the exception of the item checkea in red, which 1s the’
lt.em of cash received from the sale of Governmerit bonds
for the purpose of paying taxes e The- Cbunty Jiidge has
withheid his commission on this Item awaltlng a further
opinion from you as to the applicablllty of this com-
mission L
“I shall appreciate it very much If you will
glve me your further opinion as to whether or nbt one-
half of one per cent commlssion can legally be assessed
by the Gounty Judge on the Item under Capital Receipts
of PBonils sold to pay taxes In the amount of $3,136,069.14.‘,”
The commissions allowed the county judge under Arti-
cle 3926 are upon ~“the actual cash receipts’ of each executor,’
&dminlstrator, or guardfan, upon the approval of the exhibits,
and. the fln.al settlement of the account e . D .’
It Is well settled that cash on hand or in the bank
at the death of the testator 1s not “actual cash receipts” wlth-
in the rnearilng of ‘the a’bove statute, and no CommlssiOn accrues
thereon In favor of the county judge, 25 Tex. Jur. 260; Wlllls
V- Harvey, 26 S .W. (2a) 288, error refused a In our opinion No.
o-5654, written in ar>swer to an earlier inquiry from you, we
held that “#hen, in the course of an aamlnfstratlon, part of the
corpus of tne estate 1s converted into cash, the county judge
1s entitled to 8 commfaslon on the amount of such cash.” The
answer to your present inquiry, therefore, turns upon~‘the ques-
tlon of whether U.S. Government bonds owned. by an estate repre-
sent “cash on hand” prlor to their conversion into money.
Our opicion No, 0-5654 held in effect that corporate
dook ala not become “cash” until Its converslon Into money.
Hon, J. D. Looney, page 3 O-5704
Although the d,ecisions are not un.anlmous, we balieve the weight
of authority supports a holding that U, S. Government bonds
likewise cannot be considered’ as “cash” until they are converted
into money O In re KeePs Estate 2 P. (2a) 806, (N,M,:;” fin
re Chamberlain’s Estate, 115 PO f2a 235, on second appeal.,
132 P. (2d) 488 (California District Court of Appeal) ; Mann,
7 Am.‘Dec: 416; State V. Darby, 165 SOW. (2d) 419 (MO.);
Neufield V. U.S., 1.18F, (2d) 375; Cou,lter v. State, 39 S, W.
576 (Tex. Cr. App.); Simpson v, Goggin, 5 S,W. (2d) 610 (Tex,
Clv. App.)’ (holding that checks by persons or corporations
are not “cash”) O See also Willis v. Harvey, supra, aherein i.t
IS stated: “It Is ,?ihought the term ‘actual cash receipts’
should, be held to specifically describe monexL. 6 O i”
We do not regard as persuaslve the fact that the
U.S. Government had a lien on the bon&, and that the p”Ar;;;; of
selling the bonds was to pay Federal and State taxes.
exists in favor of the U. 9 ,, Government on all estates of
decedents on which estate taxes are due, and to hold that this~
avoided the obligation to pay commissions would deprive the
county judge of his commissions in all exceptional,lg large
estates D In our opinion the language of Art, 3926 fails to
support such a construC:tfon. With reference to the raising of
the money to pay taxes contention, we call attention to our
opinion No. 0-811, ,wherein we held that the county judge was
entitled to his commission on money borrowed by the executor to
pays the claims against the astate. Further, in a case wherein
an administrator carried on a poea construction con~tract of a
decedent, Judge Powell of the Commission of Appeals said:
‘ “The court seems to lay napch stress on the fac,t
that as soon as the i;our:t,ies paid the administrafor
for the road work, the iatter had to pay it out in
expenses connected wi,th tCie oomtrv,ction of the roa&,
We do not think the time or manner of its disburz;mznt
has anythimo do witpl the fees of the county 3 R
since he, unlike execu,tors and adSfinistrators, receives
no compensation, on disbu:3eme::~ts 6
This decision allowed a commission ,to ,the judge on, these re::a.ip’tis.
Goodwin V. Downs, 280 SOW, 512,
From the foregoingp it follows that we are of the
opinion that the sale of ,the eo?lds represented t;e conver5 ia::.. of
assets of the estate ir..to “ae’-L;zal cash receipts, and the coi;s,tg
judge is entit~led to his sta~tuto’ry commission thereon,
Hon. J. D. Looney, page 4 O-5704
Yours veri truly
ATTORNEYGENERALOF TEXAS
By a/Jo Arthur SiXndlin
J .” AFC-iur Sanalin
Assistant
JAS:AMM:wc
APPROVEDAPR'22, 1944
s/Gee. P. Blackburn
(Acting) ATTORNEYGENERALOF TEXAS
Approved Opinion Committee By s/BWB Chairman