- - 

R-821 

‘THEATTORNEY GENERAL 

OFTEXAS 

Hen. Ben J. Dew 

Dlrtrtot Atto+‘nq 

Steplwas County, 

Brebkenrl~e, Texas 

opirdon RO. v-398 

10: sbee, of a county Judge 

whea n l dmlilitroaf tor 

a n esta brig, te probate.6 

orr heUnitr edthe, Qa o v0r nBaBolt nds.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, 

please advlee 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.” 

We quote 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 be 
Hon. 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 was further 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. We quote 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 this 
Hon. 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. We think 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 

Article 3926 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 

ATT RNRY GENRRAL 

JR:djm 

ATTORNEY GENERAL OF TEXAS 

Assistant