OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
QROVER SELLERS
AlTORNLI QCNLIIAI.
. Honorable .Jos, By, Dart.
County Attorne?’
Kendall Ownty
Boe me , Texas
Dear, Sir!: Opihioh~ Elo’. o-7261 /
t~oti:br:~r;staties $.n:Texas
‘presorlbed by: the~‘v&rlous provisions of our statutes
regulat&g the settlement of estates. The jurls-
dlatlon and powars’bf ‘the aourt to settle tha estate
.Honorable &OS. B. Dart, Page 2
Is always behind an Independent administration.’
- Wilhelm s Estate vs. Matthews, 274 S. W, 251, is
0itea?
“--MJcle 3644 R.C.S. says in part: ‘If any
person entitled to a. portion of an estate . . . .
shall not demand hle portion from the executor or
administrator within six months after an order
approving the report of oomdseionars of. partition,
the county udge by an order entared upon the
mlnu~te6 .bhaL requlre~ the exeautor or adminl.strator
to pay 80 much of said portion as may be in money
to the .Stata Treasurer ; ,’ . . .Upon the settlement
of the final aooouat of. an exeoutor ore administrator,
if the ~.helrs, aeolseee or .legatees’ of the iatete
a0 not appear, , . . and there are any
k&l~.& ouoh estate’ ramainln~ in the~,hands of.:the
exeoutor or atlmlniatsator,. the. oountg .&age shall
enter an order upon-~the~mlnutes requM.n& buoh
exeoutor or administrator to pay suoh funds to the
State Treasurerr ’
(.
TJnder: the above dated raots and by referenoe
to the quoted cases and, the statutes governlng~ tha
administra8ion of es.tates by an’ executor appointed
under a wlll’5.n whloh the provieions of Art, 3436
are emboalea, woula the aountp judge be authorized
to aooept an application from the inaepenaent-
exeoutor for amorder dlreoting the independent
executor to turn the $10.00 in question Over .to the
State Treasurer, and la turn iseue.the order?”
While it &true, in one sense, that this bequest
la an “unCialmad portion? of the’ Estate oi Decker, Deceased,
it nore properly should be @awed as a rejeoted bequest, A
berietioiary unbar a will Is not bouna to aaoept a legaay or
devise therein provldsd for but may alsolalm or renouno6
hla right under the ~111, 69 0. J, 974, 880,~ 2168, Where
the beneficiary disclaims or renounoes his interest under
the will, it beoomea inoperative as to him, and the property
will be. dealt with as if the gift haa not baen made. Id,
Sao, 2169,.
. / 25s
qonorable Jog. B, Dart, Page 3
Artlole 3644 wss a part of a comprehensive aot
asera in 1~76 pertaining to the estates or deoeased persona,
P t is obvious ftom the plan and struoture of said Aat that
this seotloa was Sntendrd to apply to the portion or aa
estate which was bequeathed to persons who were non-resident,
who oould~ not be found, or who iOr any other reason ‘were not
represented in ogurt at the time of the distribution of the
as8ate. 'The monag was plaoed fn the oustody or the Treasurer
of the State in order that euoh persons later might make
proper proor and reoover them.
Therefore it is our opinion that the Oounty Sudg@
wotila not be’authorlzed to aooept and grant an applloation
from the lnaepeadrnt enoutor for’~ sn order direotlw the pay-
men8 or the #lo.00 in qtiesbion to the State Treasurer.
Yours very truly
,ATTORNEY GImRARAL
OB ‘!CBXtW
~j&“ff&&,
Arthur I,. Moller
Assistant
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