- - R-821



### ‘THEATTORNEY 

### GENERAL

OFTEXAS

Hen. Ben J. Dew Dlrtrtot Atto+‘nq Steplwas County, Brebkenrl~e, Texas 

### opirdonRO.

## v-398 10: sbee,of a countyJudge when a l dmlilitrator

of an estate

brig, 

### probate.6 

### orrher United, thea Qov0rnBalt Bonds.í

Your 

# request ror an oplnloa iroB 

# this offloe on the above eubjeot matter 1s in part as follor~i

“3x1**the** light of the forego
“zr authorlties and opinions of the Attorhey 

### enoral, pleaseadvlee whether 

### or not the County Judge of Young county, lo entitled, to oolleot onehalf of one per cent fees vhere.the Admini13- trator of an estate in that County has oeshed Uaited State8 Qkernrent E bonds and United States Qovernment ff Bonds belonging to such eatate ao admInistered in the probate court.” Wequote the following pertinent statutory provlslonst

“Art. 3926.

“The county judge s&ill also receive the following fees:

“1

. A commlsslon of one-half of one per cent upon the aotual oaah reoeipts of each executor, edninistrrtor or guardian, upon the approval of the exhibits end the final settle- ,rent of the account of such executor, rmnistrator or guardian, but no more thsn one **such** oorrission shall be charged on 

### any mount received by any yh executor, adainlatrator or guardian.

. . .

“ht. 3689.

“Executors end admlniatrators shall beHon. Ben J

. Dean - Page 2 (V-398)

entitled to receive and may retain in their hands five per cent on 811 sums they may actually receive in cash, and the same per cent on all sums they may pay out in cash in the course of their administration.”

“Art. 3690.

“A commlseion shall not be allowed or received for reoelvlng my cash which was on hand at the time of the death of the tertator or intestate, nor a oommiaslon for receiving money,realized from the sale of property to satisfy debts against the property and the paying out of the proceeds in satisfaction of the debt exoept as to the amount realized from the sale In excess of the debt, nor for paying out money ,to the heirs or legatees as such, Provided, howsver, that if the administrator or executor shows to the court that the value of the servloe rendered the estate in making e sale of property seourlng a debt exceeds the amount of the commission oaloulated as above provided, then the court shall allow a commission for a just amouut. The amount not to exceed that now allowed by law.” In construing the above quoted statutory rovisions, it was held In Willis v. Harvey, 26 3. W. Ip24 288, vrit refused, that there is no difference in the meaning of the terms “actually received in oash” CLS used in Article 3689 and “actual cash receipts” as used In Article 3926. It 

### wasfurther held that the ‘receipts” did not embrace cash on deposit in the bank at the death of the testator.

,It was held in Terrlll v. Terrlll, 189 3. W. (26) - 877, 

### writ refused, that Postal Savings Stamps owned by testatrix at the time of her death should be classified as “cash on hand” within the meaning ,of Article 3690 Instead of “sums actually reoeived In cashl’ within the meaning of Article 3689. Wequote the following from the Terrill case:

“It seems that the executor did not claim 

### a commission upon the $600 in his itemized report to the legatees of the estate. The county Court held, however, that he 

### was entitled to retain five per oent of sald~amount. In thisHon. Ben J

. Dean - Page 3 (v-398)
holding the Court erred. This $600 was in the form of Savings Stamps, United States Post Office, which were purchased by decedent and held by her at the time of her death. These stamps were an obligation of the United States Government, payable upon demand. The executor did not sell these stamps but cashed them. He merely exchanged one form of a government obligation for another. Wethink this $600 in Savings Staraps Is properly classified as cash on hand at the time of the death of the testatrlx within the meaning of Article 3690, Vernon’s Ann. Olv. Stats .I’ Following the reasoning In the Terrlll oase, it Is our opinion that when the Administrator of an eatate oashes United States Government Bonds, he merely exchanges one form of a government obligation for another. Therefore, such sums should bB classif,led as cash on hand at the time of the death of the testator, and the county judge Is not entitled to any fees under 

### Article3926 on said sum.

Attorney General’s Opinion No. o-5704, which was written prior to the holding of Terrill v. Terrill Is hereby overruled. SUMMARY

A County Judge Is not entitled to fees or commissions under Article 3926 when the Administrator of an estate being probated cashes United States Government Bonds. Terrill v. Terrlll, 189 S. W (26) 877, writ refused. Yours very truly APPROVED:

.

“;1-& FIR ASSISTANT ATTRNRY

GENRRAL JR:djm ATTORNEY GENERAL

OFTEXAS

Assistant