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AUSTIX 11. TEXAS 

June 22, 1964 

Honorable Don Hall 

District Attorney 

Waco, Texas 

Opinion No. C-272 

Re: Whether receipts from sale of 

securities by non-independent 

executor are subject to County 

Dear Mr. Hall: 

J;lp;'s fee under Article 3926, 

. . ., and related question. 

Your letter recites that during the course of adminlstration, a non-independent executor sold various securities, and 

you request an answer to the following questions: 

'When the executor sold these securities belonging to the estate, did the total amount of money 

received from the sale constitute taxable cash receipts under Article 3926 (l), Vernon's Revised 

Civil Statutes? If so, are net losses on the sale 

of individually inventoried items to be deducted 

from taxable cash receipts?" 

Paragraph 1 of Article 3926, V.C.S., allows the County 

Judge a fee of one-half of one per cent on the "actual cash 

receipts of each executor. . . *' 

It is well settled that cash on hand uoon a testator's 

death is not deemed "actual cash receipts."* Willis v. Harve& 

26 S.W.2d 288 (Tex.Civ.App. 1930, error ref.). The language 

of the cases, however, lacks uniformity with reference to the 

status of cash derived from disposition of the non-cash 

portion of the estate. Such lack of uniformity finds expression in a diversity of opinions from this office. 

In Attorney General's Opinions Nos. ~~-1076 (1961) and 

O-5654 (1943) > we held that money derived from disposing of 

the corpus of the estate was "actual cash receipts." In 

Opinion No. WW-502 1958 , we held to the contrary. In 

Opinion No. ~~-664 t 1959 , ! we held that certain claims against 

an estate, when collected, were not subject to the fee in 

question. This latter opinion purports to overrule two 

earlier opinions to the contrary. 

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Honorable Don Hall, page 2 (C-272) 

The right to the fee on receipts from sales of the corpus 

was discussed at length in Lyles v. Oheim, 138 T 333 159 

S.W.2d 102 (1942). The administrator paid the fE:'to tie 

County Judge who supervised sale of the ranch. M th later 

a successor county judge approved the annual accozzt 'demanded 

the fee be paid to him and filed suit therefor. The'Court 

said: 

'The sole question presented here is whether the 

commissions to be paid a county judge under Article 

3926 . . . on the receipts of an estate, are to be 

paid to the county judge who made the orders and 

approved the proceedings for the sale of property 

belonging to the estate . . . or whether such commissions are to be paid to the county judge who 

later acts upon the annual account. . . . 

The court said $hat "each county judge was paid 

amount due him . . . , and in explaining its reasons 

"The law places the duty on the county judge 

the 

said: 

to 

hear applications for the sale of property belonging to an estate, and to order it sold. It also 

places on him the duty to see that such sales are 

made in accordance with his orders, and that the 

administrator in all things complies with same. 

He must check and approve such sales, and order a 

distribution of the proceeds derived therefrom. 

The law allows the county judge a fee of one-half 

of one per cent 'upon the actual cash receipts' received; and since he must perform the duties imposed upon him by law, surely he is entitled to 

such commissions upon the approval of such accounts. 

The reason of this construction rests upon the 

ground that the judge performing these duties is 

entitled to be paid therefor. . . .' 

It may be argued that the statements by the Supreme Court 

are dicta, but it is obvious that the court gave the whole 

matter very careful attention,, and Its holding that the first 

judge was properly paid appears to have been deliberately 

made. At the very least, this authority would appear to be 

strong1 ersuasive Wiener v. Zwieb, 105 Tex. 262, 141 S.W. 

771, 77% p1911); 15'Tex.Jur.Zd 594, courts, Sec. 135. 

Attention is directed to the fact that the duty is on the 

county judge to supervise sales of personal property as well 

as of real estate. Sections 331 et seq., Probate Code. 

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Honorable Don Hall, page 3 (C-272) 

In Goodwin v. Downs, 280 S.W. 512 (Comm.App. lg26), the 

administrator completed certain road building contracts 

entered into by the decedent. The issue was whether the fee 

of the judge was to be based on gross cash received or on net 

profits after payment of expenses. The court quoted from the 

Civil Appeals opinion to the effect that such fee was taxable 

upon all cash received "from the sale of property owned by 

decedent at the time of "on hisdeath, of debts, 

rents, etc., and "on actual cash remainin 

the administrator and coming from de%t"iZ %%e"~ecedent's business." (Emphasis added.) 

The Commission of Appeals did not find fault with any 

portion of the holding of the lower court as above set out 

other than to indicate that the fee was to be computed on 

gross receipts rather than the net remaining. The court said: 

"The county judge has only one way to receive 

any compensation for his supervision of an administration. His responsibility is great. Re 

must study the reports and approve the accounts, 

including-receipts and disbursements." 

added.) 

(Emphasis 

Willis v. Harvey 26 S.W.2d 288 (Tex.Civ.App. 1930, error 

ref.), involved cash &n hand at the date of death of the testatorheld by an independent executor. The following language 

by the court indicates, in our opinion, that the court deemed 

receipts from sales of corpus to be subject to the fee: 

"The act very clearly has in view the providing 

of compensation to the probate judge for his official control of estates, based on 'actual cash receivts' shown bv the exhibits, and the final settlement of the account of 'the executor' Judged 

from its associated words, the term texe&iort was 

meant to refer to the executor administering the 

estate of the testator under the control of the probate court. Such class of executors are required, 

as administrators and guardians are, to present to 

the probate court in an exhibit of accounting, under 

oath, all sums in cash derived from sales, collections and like sources in due course of administration. The probate judge is required to examine and 

approve all such exhibits. . . . The official 

situaiion of an independent executor is different. 

. . . (Emphasis added.) 

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Honorable Don Hall, page 4 (C-272) 

Referring to the statute in question it is said in 18 

Tex.Jur.2d 641, Decedents' Estates, Sec. 621: 

I, 

. . . This commission is not limited to receipts 

arising from sales of property collection of debts, 

rent of oronertv. etc.: it mav'be collected on receipts arising ?rom the conduct of a business. . . ." 

(Emphasis added,) 

Although the question is not free from difficulty because 

of language In the cases mentioned below, we are constrained 

to hold in the light of the above authorities that the fee in 

question is properly due on receipts from sale of the securities mentioned, with the exception of Government bonds which 

are cashed. In Opinion No. V-398, this office held that the 

fee was not due on receipts from United States Government 

bonds which are cashed, relying upon Terrill v. Terrill, 189 

S.W.2d 877 (Tex.Civ.App. 1945, error ref.}. 

In Gilbert v. Hines, 32 S.W.2d 876 (Tex.Civ.App. 

a guardian's fee was claimed under Article 4310 V.C.S. 

viding for fee on “estate . . . first deliveredl'), on funds 

collected from the Veterans' Bureau for compensation and war 

risk insurance. The fee was disallowed, 

In McCrory v. Wichita Count 261 S.W.2d 867 (Tex.Civ. 

App. 1953, error ref.), the coun i judge's fee was disallowed 

on cash received by a guardian from aliquidatingtrust estate. 

The court was careful to point out: 

"The 'estate first delivered' to appellant was 

the distribution made to her by the trustee. The 

real property of the trustor was never delivered to 

her. Her only right was to receive for her ward 

one-twenty fourth of whatever amount the trustee 

converted into cash. As guardian, she could not 

have claimed a commission on the estate first delivered." 

There is admittedly language in the two cases last above 

mentioned from which a conclusion contrary to the one we have 

reached could be urged. It is, therefore, our duty to ha,rmonize the decisions if at all possible. We direct attention 

to the fact that in neither of said two cases is the county 

judge required to supervise a sale of property. In each case, 

the representative of the estams merely engaged in collecting certain claims of the estate. This is in line with the 

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Honorable Don Hall, page 5 (C-272) 

Terrlll case, supra, denying the fee on the cashing of Government obligations and with our Opinion No. ~-664, supra, denying the fee on monies received by a guardian on claims for 

social security and for workmen's compensation. Because we 

believe that the language of the courts in the L les Goodwin 

and Willis cases, supra, is more nearly in poin +- as it relates 

to s-as distinguished from the collection of claims, we 

helmt the receipts from sale of the securities are subject 

to the fee in question. 

fee 

The 

In the Goodwin case, supra, it is pointed out that the 

is assessed upon the gross receipts received by the estate. 

question, therefore, of whether a particular security was 

sold for more or less than its estimated value as set out in 

the Inventory would be immaterial. This answers the second 

portion of your inquiry. 

Attorney General's Opinion WW-502 is hereby overruled to 

the extent that it is in conflict with this opinion. 

S U M M.A RY 

Gross receipts from the sale of securities 

by a non-independent executor are subject to 

the county jud e's 

% 

fee provided in Paragraph 1 

of Article 392 , V.C.S. However, receipts from 

the cashing of U. S. Government bonds are not 

subject to such fee. 

Yours very truly, 

WAGGONER CARR 

Attorney General of Texas 

JAS:da 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Bill Allen 

George Gray 

Grady Chandler 

APPROVED BOR THE ATTORNEY GENERAL 

By: Stanton Stone 

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