OFFICE OF THE AlTORNN GENERAL OF TEXAS

AUSTIN



## Eon.&yne

IalbYr8 county iwitor c4 *=m

80,n,0.E. 1911,r8aes88follcnmr

1beallawedthecountyjudge

ofoneper

## otmt

upon ofrwoham~cttim,adYupontheapproyalHon. WayneIefevw, Page 2

Article 3850, supra, was.bro~ht lorward,ln the Revised Civil Statutes of 1925 in Artlole 3926, whioh reads in part a8 followsr

"The oounty judge shall also reoelve the following Sees:

"1. d oom~~laelonor one-half OSone per oent uponthe eotual oaeh reaelpta of eaoh exeaubor, administrator or guardian, upon the approval ol the 'exhlblhe end the rinal settlement of the aooouut of suah exeo'utor, adminiatrator or guardian, but nouore than one suah oomlselon shall be ohargecl,on any emouut mosived by any suah exeautor, administrator or guardian,"

Wequote from the ease of Oriae vs. Coolep, et 170 6W1088, as follows!

"Whenare the aomiasiona pmvlUsQ tar by Artlole 3250 (mm Art. 39261 payable') ft is the oontention o? appellant.that thay a+ not payable until the guartlian'e final aooount 

### Isapproved., Appelleee oontend that they a* payable upon all oaah reaeipte shownby any annuati~eoount OSthe guarilhn, wheti

### euahdooount 

### Isapproved by the jutl e Omittingr0=at f to whcmIt 

### Ispresslited. er5, the artlole provide19 that the aounty judge, in addition to other apecliied fees, shall %I allowed .*.., ~'o~QImission of one-half of 1 er sent. upon the aoteal cash reoeipta of eaog i..,. guardian the approval of the exhchibftaand the f&l upon
settlement of the aooount of suoh

.... guaMIan,* provided only one suoh oharge shall be made. Prooeaalng on the theory that the faglalature,~ whenIt enaotod that euoh ices should bk'pald *upon'the approvnl of the exhiblfs'and the' rlnaz settlement of the aaoount' of the guardian, intended that full rorae and efffsot shouldEon. WeyneLefevre, Page 3

be given to both pmvislone, we oonolude that suoh ommlrrdons may be payable upon approval of the annual eocount or upon approval of the final eaoount, depending uponwhenthe ~rdIan resolved the money uponwhIoh the ocnnmIee.ionIe.sou@t to be ool?ected. For illustration, it;upoti presentation of an annual aooount It discloses that oaeh has been reae ved i by t:-!etpuxrdianp~rlorto such preaentatfon

. andsubsequent to any last annual aooount, such guardianwould be en%Itl+d to the speolfIed ooErmlssfona upon the approval of the acoount 80preeented. Onthe other hand, if it appears fz~m the guardlan*s. f ’inal acoount that slnae his last annual aooount further cash hae been received, he would be entitled to his oommlaslon thereon upon the approve1 of suah final aaaount

. Thereierende to the approval OSthe guardian18 exhibits and the approval

0r Ns final eooount we regard ue merely rixinC:

the period or time when~the county .judge maytax hls owimlsslons. ByArticle 4186, R. E. 1911, guardlane are required to present an annual aoaount’under oath showing, amory;other thinKs, ‘a ocmplete aooount of reoelpts end disbursements olnoe the last annual eooount.’ .Upon pr?- eentatlon of suoh annual account, It Is by subsequent provIsIons of the statutes madethe duty of the then presiding county judge to oonduat a hearing thereon, and, Ii he is satisfied that/the aooount le oorreot, it is his duty to approve -s=e. Ravbq madeIt the duty of tho.oounty judr~eto approve such eooounta, and ha*- I= allowi$ a fee of one-h&! Of 1 per oent. uponthe ‘eatual oaeh reoeipts shownthereby, It surely follows, It Seerae to us, that the oommisaiona are payable upon ouoh appaoval, for the reason thatEon. !‘&ayne Lerevre, bee 4

they were clearly Intended for the~beneflt ofthe 

### c?rrlcerpsrromlng the duty, and, having been so Intended, It was never oontonplated that he should forego hls cc%- pensatlm until final settlenmt-a%:$hF estate, particularly whenfinal settlemit nIQht not oonmuntil artier the lapse of $.nfn~ars andthe possible death of the

WJdonot, as lndloated, thlnk. the ref&enoe to flnal settlesent at ellsmanln@ess. It Is very pmbebly tbst In many 2uardlanshlp ~roceedln~s **oash** would be reoaived by tho ~uaMlan In the .perIod intervening between his last annual aooouut and the flnal account. If such oash was received, the oounty judge whohedtmd approved such final aooount would;be.ontitled to the comlsslon thereon, and the 8010 pwpos~, in 0~s opinion, for say rate* en06to final settleaent, was to aeoure the osfloer In ths peymmt of the Yees aacrulng at that time andwhloh oould not be done under the ~rovlalon covering anuual accounts.

"'Wehave treated the word *exhibits', in article J&50, as referring to annual aooounts. Wile It maynot be said that the exhibit, either literalLy or in legal oontempletlon, meens account, It Is well knm that aooounts are often attached to plsadlngs es exhlblts. Such oustom, taken In oonnection with the reference In the ssns,atiIole to oash peaeipts rsqulred.to be shovs.ln snuual aocounta by article 4106, l?. 8. 1911, and the further faot that the annual aaoouuts required Oi &her fidualarles are referred to ns snnual exhibits (articles 324., 3242, R. 2. 19.911)
sue in our'oplnlon sufflclent basis for holding that anmal accounts were Intended."Artlolfe3320 and 3321, R. C. S. read as follow3:
"h-t. 3320. Exeoutors end adminietratort? shall ma& annual exhibits under **oath,** fully nhowlnqthe ccndltlon or the estate; they shall n&n final settlement of the eutatea they represent.rithin three years from the 3-t of letters, unless the tfms be extended by the oourt after satlsfaotory showing laeda under oath; and, upon fatiure in either 0888, shall be removed as provided by law.

"Art. 3321. Anyexhibit madeby qn ereoutor or administrator showing a list of olaims allowed and approved or established a&nst the estate he represents, or ehavt@g the condition-of said estate and anaooount of all money received ati paid out on aoootmt of 8atd eatate, returned to the oourt betore the liliyr of the aocount for final*eettlement, 5hal.l be filed with the clerk, and notioe of muohfilw shall be posted at the oourthouse door tcr ten days from the postin& after whloh the onurt shall examine. aald exhibit, and if correct, render judqent of approval thereon and order it to be reoorded."

In vim of the foregoing authorities, you are respectfully advised that it.ia the oplnion.of this department thst the one-half of one per cent oommlst3ion iron the reoelpts of properties handled byean administrator is paya!:le to the county judge upon the aubmlsslon of exhibits andthe annual report andthat auoh oommlesfon is not payable at the time of the sales “of the property.

TrustLng that the foregoing answers your inquiry,
we remain Very truly yours