TEEAYTORNEYGENERAI. 

### OF TEXAS

FVILL WILSON AlTo- OENERAI. Ausm 11. T-a

June 10, 1961

Honorable Durney Walker District Attorney Mc,LennanCounty Waco, Texas Dear Mr. Walker: Opinion No. 

### ~14-1076 Re: Whatconstitutes “actual cash receipts” as such term is used in Article 3926, v,c.s.? Youhave requested an opinion from this department on the construction of Article 3926, V.C.S. You state, “the question to be resolved is determining the scope and definition of 'actual cash receipts.‘”

Article 3926, V.C.S., provides in part as follows:

“The County Judge shall also receive the following fees: 1. A commission of one-half of one per cent upon the actual cash receipts of each executor, administrator or guardian, upon the approval of the exhibits andthe final settlement of the account of such executor, administrator or guardian, but nomore than one such commission shall be’charged on any amount received by any such executor, administrator or guardian.” (Emphasis added). Youhave cited several cases which wewill discuss in connection with this opinion.

In the case of Lyles v. Oheim, 138Tex. 

### 333, 159 S.W.2d 102 (19&2), the question before the court waswhether the commissions to be paid a County Judge under Article 3926, on the receipts of an estate, were to be paid to the County Judge who,made the orders and approved the proceedings for the sale of the property belonging to the estate, andwhowasin office whensuch estate and its administrator received the receipts derived from such sales, or whether such commissions were to be paid to the County Judge wholater acted upon the annual account filed bythe administrator of such estate. The point wasnot raised as to what constitutes “actual cash receipts”, but the commission waspaid on the full amount of receipts received from the sale of the corpus of the estate and it seems that both parties to the suit as well as the court agreed that this wasthe proper amount of commissions to be paid.Honorable Burney Walker, Page 2 (Opinion No. ~~-1076)

The term “receipts” does not embrace cash on deposit in the bank at the death of the testator. The term “actual cash receipts” should be held to specifically describe money received by the executor other than the cash or corpus of the estate which was onhand whenthe testator died. WilliS v. Harvey, 26 S.W.2d 288 (Civ.App. 1930, error ref.)

In the case of Goodwin v. Downs, 280 S.W, 512 (Tex. Sup. 1926), the Court held that the County Judge was entitled to acommission on actual cash receipts received bythe administrator while completing the road construction contracts of the decedent; and that the time andmanner of distribution thereof did not affect his fees, since he received no commission on disbursements.

In McCrory v. Wichita County, 1953, error ref.), the Court said in Judge is not entitled to commissions delivered”, andwhenthe ward’s sole

_ . 261 S.W.2d 867 (Civ.App. effect that the County on the “estate first interest in the corpus

_ . of tne SState was tne rignt to reCeiVe aUlstributive share of the funds upon liquidation, the “estate first delivered” to the guardian wasthe distribution madeto her bythe trustee and the amount so received wasnot “actual cash receipts” but wasthe corpus of the estate. If this distribution had been in the form of property other than money and the property had been sold after coming into the hands of the guardian then the proceeds would have been “actual cash receipts” andwould have been subject to the commission.

It is our opinion that “actual cash receipts” as used in Article 3926, V,C,S., does not meanthe receiving of the corpus of the estate by the executor, administrator or guardian, which includes both real andpersonal property (including cash), but only means cash received from the sale of the corpus of the estate, or apart thereof, and all moneys received during the course of the administration from rentals, royalties and other revenue derived from the estate received.
SUMMARY Actual cash receipts as used in Article 3926, v.c.s., means cash received during the course of the administration from the sale of the corpus of the estate, or a part thereof and rents, royalties and other revenue derived from the estate and does not include the corpus of the estateHonorable Burney Walker, Page 3 (Opinion No. w-1.076)

received by the executor, administrator or guardian, whether sameconsists of real or personal property (including cash). Yours very truly, WILLWILSON Attorney General of Texas

J. H. Broadhurst Assistant Attorney General

APPROVED: OPINIONCOMMITTEE: W.V. Geppert, Chairman SamWilson Martin DeStefano RayLoftin Jerry Roberts REVIEWED

FORTHEATTORNEY GENERAL By: Morgan Nesbitt