W’ILL WILSON 

*lToRNEiY GENERAI. 

July 

Honorable William Hunter 

District Attorney 

69th Judicial District 

Dalhart, Texas 

Dear Mr. Hunter: 

18, 1962 

Opinion No. WW-1391 

Re: Whether each of thren 

executors of a decedent's 

estate is entitled to 

compensation under Article 

241 of the Probate Code for 

sums of money paid out by 

them under the two stated 

fact situations. 

You have requested the opinion of this office as to 

whether each of three executors of a decedent's estate is entitled to compensation under Article 241 of the Probate Code 

for sums they have paid out in cash for the following: 

1. When money is paid to one of the executors 

who is employed by the estate as a clerk in 

a store operated by the estate. 

2. Payment of attorney&' fees for administration 

to a partnership when one of the executors is 

a member of such partnership. 

Supplemental information was received, to the effect that the 

executor who engaged in the operation of the store actually 

acted as the manager thereof. 

Article 241 of the Probate Code reads as follows: 

tratoZa) ' ' 

om ensation of Executors and Adminis- 

. Executors and administrators shall be entitled to receive, and may retain in their hands, a 

commission of five per cent (576) on all sums they 

may actually receive in cash, and the same per cent 

on all sums they may actually pay out in cash, in the 

administration of the estate; provided, no commission shall be allowed for receiving cash belonging 

to the testator or intestate which was on hand or 

on deposit to his credit in a bank at the time of 

his death, nor for paying out cash to the heirs or 

legatees as such; provided, further, however, that 

in no event shall the executor or administrator be 

entitled in the aggregate to more than five per cent 

(5%) of the gross fair market value of the estate 
Hon. William Hunter, page 2 (WW-1391) 

subject to administration. If the executor or 

administrator manages a farm, ranch, factory, or 

other business of the estate, or if the compensation as calculated above is unreasonably low, the 

court may allow him reasonable compensation for 

his services. For this purpose, the county court 

shall have jurisdiction to receive, consider, and 

act on applications from independent executors." 

As regards the executor who dealt with the store, the plain 

language of the statute must control. The statute says, "If the 

executor or administrator manages a farm, ranch, factory, or other 

business of the estate, or if the compensation as calculated above 

is unreasonably low, the court may allow him reasonable compensation for his services." This "reasonable compensation" allowable 

by the court is in addition to any commission that would be payable to the executor for his activities as executor in administering the estate. 

With respect to the executor who is a member of a partnership which was retained by the three executors to handle the 

legal aspects of the estate administration, the problem is considerably more difficult. Apparently, only one case in Texas has 

dealt with the matter of an estate paying the legal fees of an 

executor who has retained himself (or his law firm). Neblett v. 

Butler, 162 S.W.2d 458 (Civ.App. 1942, error ref., w.o.m.). ThiS 

casedealt with the propriety of attorney's fees and, in obiter 

dicta, compared the two positions regarding compensation of an 

executor who has also performed legal services for an estate. The 

court in Neblett felt that there is no compelling reason for refusing to compensate such an executor , and would have held in favor 

of paying him his attorney's fees, had such a ruling been germane 

to the problem before them. It must be noted that the position 

taken by the Galveston Court of Civil Appeals is a minority one, 

having been adopted completely by only four other states 

A 

Alabama, 

New Jersey, Pennsylvania and Tennessee). 65 ALR 2d 811, 15. 

Nevertheless, the expression made is the only court decision we 

have to serve as a guide, although it can be considered as no more. 

If we assume that the Texas courts will approve of an executor retaining himself or his law firm to perform the legal work 

connected with the estate, then we are forced to the conclusion 

that the executor would be entitled to have such fees included 

within the amount upon which his statutory commission is computed. 

Article 241 of the Probate Code cannot be construed as forbidding 

even such a commission as this. It should be noted that in Opinion No. 182 (1958), the Committee on Professional Ethics of the 

State Bar of Texas held that it was proper for an attorney to act 
Hon. William Hunter, page 3 (WJ-1391) 

as independent executor of a will, handle the administration 

thereof, and charge a reasonable attorney's fee therefor. 

Nothing was said in that opinion regarding the propriety of also 

accepting the statutory commission normally due an executor. 

Therefore, we are constrained to hold that, until such time as 

the statements made in Neblett are held not to be the law in Texas, 

an attorney-executor may retain himself or his law firm, pay the 

legal fees out of the estate (so long as tke reasonableness thereof is upheld by the probate court), and then have such fees included within the amount upon which his statutory commission is 

computed. 

SUMMARY 

Under Article 241 of the Probate Code, an 

executor who manages a store belonging to 

an estate is entitled to a reasonable compensation, to be set by the court, and should 

receive a commission on funds received or 

paid out in connection with the store. 

An executor who has retained himself or his 

law firm to handle the administration of the 

estate is entitled to have the legal fees paid 

to such firm included within the amount upon 

which the said executor's statutory commis'sion 

is computed. 

HL6,: ms 

APPROVED: 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

By&&& 

Assistant Attorney General 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

F. R. Booth 

Scranton Jones 

Bill Allen 

REVIE~JED FOR THE ATTORNEY GENERAL 

By: Leonard Passmore