Honorable T. J. Rodgers Opinion No. C-714

District Attorney Young County Re: Under Article 14.21,V.C.S., Graham, Texas Taxation-General,what is the authority of the County Judge to act as agent or representativeof the Comptroller of Public Accountsand related Dear Mr. Rodgers: questions?

You have requestedan opinion of this office on the ,followingquestions:

"1

. Under Article 14.21 what is the authority of the county judge to act as agent or representative of the Comptrollerof Public Accounts? Is it necessary that the county judge be designated in writing as suchby the Comptroller? "2

. Under Article 14.22 may the county judge designate a representative in a bank, safe deposit company or other institution having possession and control of papers of a decedent as his agent or representative to turn over a will, deed or insurance policies to the representative of the decedent's estate?

“3. Does a will delivered to the clerk of the probate court have to be filed by the clerk and retained In his possessionuntil application for probate is made? If there is no necessity for probating the will but is filed only as a muniment of title, is the clerk still required to retain same in his possessionand what record, if any, is made of it?" Article 14.21,Vernon's Civil Statutes,TaxationGeneral, reads in part:

"No safe deposit company, trust company, corporation, bank or other institution, person or persons, having in possession or under control -344%Hon. T. J. Rodgers, page 2 (C-714)

securities,deposits,or other assets belonging to a decedent,who was a resident or non-resident, or belonging to such a decedent and one or more persons, shalldeliver the same to the executors, administrators heirs, or legal representatives of said decedekt or to the survivor or survivors when held in the'jointnames of a decedentand one or more otherpersons, or upon their order or request,unless notice of the time and place of such Intendeddelivery or transfer be served upon the Comptrollerat least ten (10)days prior to said delivery of transfer, and delivery to bemade only in the presence of the Comptroller or his duly authorizedagent, who may be the County Judge of the county in which said transfer transpires,unless the Comptroller, in writing, consents to the transfer without his presence. And it shall be lawful for the said ComptrolLer, or his representative,to examine all of said securities,deposits,or assets at the time of such deliveryor transfer.

. . ." The statuteprovides that the County Judgemay act as the agent of the Comptroller if so authorized by the Comptroller.

Agency hasbeen defined by the Texas courts: "Agencyis a legal relationshipwhich is basedupon a contract, express or implied, of the partiesor createdby the law, by virtue of which one party is employedand authorized to act for another. The party so employed is the agent and the one who so emolovs him is the orincioal.

_ _ _' Great SouthernLife fnsurance Co. v. Wiliiams,-lj5- S.W.2d 241 (Tex.Civ.App,1939, error dism., judgm. car.);Hawkinsv. Murphy & Bolanz, 112 S.W. 136 (Tex.Civ.App.1908, error dism.). Since the statute provides that the CountyJudge "may" be the Comptroller'sauthorized agent, the County Judgedoes not automaticallybecome the Comptroller'sagent for the purposes of Article 14.21. The agency is not created by law since the County Judge is not required to act as the Comptroller'sagent. Consequently. the laws of contract are applicable;and there must be an offer-and acceptanceto act as Agent Amber PetroleumCo. v. Beech. 111 S.W. 668 (Tex.Civ.Aoo.1908.'nowrit history). 7i .ithough'written

authorization to-act as the Comptrollerls'agent is not requiredbyArticle 14.21, it woul.dbe good practiceto acquire such authorizationin writing from the Comptroller. -3446-I

Hon. T. J. Rodgers, page

Article 14.22, reads as follows: 3 (c-714)

Vernon's Civil Statutes,Taxation-General,

"When It ismade to appear to a County Judge in this State that a safe deposit company, trust company, bank, person, or corporation has in its possession orunder its control papers of a jurisdiction decedent of whose estate such court has that the decedent has leased from such a coi&zEation a safe depositbox, and that such papers or such safe deposit boxmay containa will of the decedent, or a deed to a burial plot in which the decedent is to be Interred,or a policy of insurance issued in the name of the decedent and payable to a named beneficiary, hemay make an order directing such deposit company, trust company, bank, person,or corporation to permit a person named in the order to examine such papers or safe deposit box in the presence of himself,or his duly authorized representative,or a representativeof the Comptroller,and an officer of such safe deposit company, trust c,ompany, bank or corporation, or agent of such person,and if such documents are found among such papers, or in such box, to deliver saidwill to the clerk of the probate court of such county, or said deed to such persons as may be designated in such order, or said policy of insurance to the beneficiary named therein. The Clerk of said court shall furnish a receipt upon the delivery of the will to him." As amended Acts 1963, 59th 6 7; eff. July 1, 1965. Leg., p. 833, ch. 402,

Article 14.22 comprehends the presence of three separate individuals, the personnamed in the order to examine the papers of a decedent or safedeposit box; an officer of the safe deposit company, trust company,bank or corporation, or agent of such person; and the county judge, or his authorized representative or a representativeof the Comptroller. Pursuant to the statute, the oerson designated in the order to examine the paoers of a decedent or safe deposit box must do so in the presenceof the other two individualsand then deliver the enumerated papers so found toparties designated by the statute. There is nothing in the statutewhich would prohibit theperson designated to examinethe papers of a decedent or safe deposit box from being an officer or employee of the safedeposit company, trust company,bank or corporation; however,such personmay not at the same time also serve as the County Judge's representativeor act in behalf of the holder. -3447-Hon. T. J. Rodgers,page 4 (C-714)

In answeringyour third question, we must look to Article 1942,Vernon's Civil Statutes, and Section 71(e) of the Texas ProbateCode.

Article 1942 reads as follows: "Theyfiounty clerks7 shall be keepers of the records, bozks, papersaiidproceedings of their respective courts in civil and criminal casesand in matters of probate,and see that the same are properly indexed,arranged and preserved, and shall perform such other duties in that behalf as may be by law Imposedon them." And Section 71(e), Texas ProbateCode, reads as follows:

"Ifthere shall be submitted to the bounty7 clerk an affidavit to the effect that thetestaf;or of any willdeposited with the clerk has died, or if the clerk shall receive any other notice or proof of the death of such testatorwhich shall suffice to convincehim that the testator is deceased, the clerk shall notify by registeredmail with return receipt requested the personor personsnamed on the indorsementof thewrapper of the will that the will is on deposit in his office, and, upon request, he shall deliver the will to such person or persons, taking a receipt therefor. If the notice by registeredmail is returnedundelivered, or if a clerk hasaccepted a will which does not specify on the wrapper the person or persons to whom it shall be delivered, the clerk shall open the wrapper and Inspect the will, If an executor is named in the will, he shall be notified by registeredmail, with return receipt requested, that thewill is on deposit,and, upon request, the clerk shall deliver thewill to the person so named as executor. If no executor is named in the will, or if the person so named is deceased, or fails to take the will within thirty days after the clerk'snotice to him ismailed, or if notice to the person so named is returnedundelivered, the clerk shall give notice by registeredmail, with return receipt requested, to the devisees and legatees named in the will that thewill is on deposit, and, upon request, the clerk shalldeliver the will to any or all of such devisees and legatees." -3448-. .

Hon. T. J. Rodgers, Page 5 (c-714)

Section 75, Texas ProbateCode, and Section 14.22, Vernon's Civil Statutes, require the delivery of the will to the clerk after the death of the testator. Section 71, Texas Probate Code, is concernedwith the depositing of the will with the clerk during the testator's lifetime. Even though the two former statutes do not indicate whether the clerkmay return thewill after filing It is the opinion of this office, in the light of Section 71(e), that the will once filed with the clerk,may, thereafter, be delivered to the executor, or the devisees or legateesunder the will prior to probate. All wills delivered to the clerkunder the above statutesmust be numbered in consecutiveorder and indexed. In the absence of a request for delivery of the will by one of the above parties, it is the clerk's duty under Article 1942 to retain and preserve thewill.

As concerns the second part of your third question, it must be oointed out that a will mav not be used as a muniment of title-unless it has been probated,Ochoa v. Miller 463 (1883);Moursund v. Priess, 84 Tex. 554 19 S.W. f7~9(%$'); White v. White, 142 Tex. 499, 179 S.W.2d 53; (1944).

Section 89 of the Texas Probate Code allows the probatingof,wills as Muniments of Title.

II

. . . In each instancewhere the Court is satisfied that a will should be admitted to probate, and where the Court is further satisfied that there are no unpaid debts owing by the estate of the testator, excluding debts secured by liens on real estate, or for other reason finds that there is no necessity for administrationupon such estate, the Courtmay admit such will to probate as a Munlment of Title." If the will is probatedas a Muniment of Title, Section 33 of the Texas Probate Code applies.

Section 93 reads as follows: "Alloriginal wills, togetherwith the probate thereof, shall be deposited in the office of the county clerk of the county wherein the same shall have been probated, and shall there remain, except during such time as theymay be removed for inspection to another placeupon order by the courtwhere probated. If the court shall order an original will to be removed to another place for inspection, the person removing such original will shall give a receipt therefor, and the clerk -3449-I

.

Hon. T. J. Rodgers, page 6 (C-714)

of the court shallmake and retain a copy of such originalwill." Acts 1955, 54th Leg., P. 88, ch. 55. Since the foregoing cases and statutesindicate that a will must be probatedbefore it may be used as a muniment of title,a will used as a munlment of title should be filed, probated,and recordedas in the case of normal probatedwills and retainedaccordingly.

SUMMARY The County Judge is not requiredby statute to act as the Comptroller'sagent under Section 14.21,Vernon's Civil Statutes, butmay be his agent if authorized.
In accordancewith Section 14.22,Vernon's Civil Statutes, theperson designated in the County Judge's order to examine the papersand safetydeposit box of a decedent may be an officer of the bank, safe deposit company or other institutionhaving possessionand controlof the papersof the decedent. However, the person so designatedmay not at the same time serveas the County Judge's representativeor act in behalf of the holder. All wills delivered to the clerkunder either 14.22or the Texas Probate Code must be numbered in consecutive order and indexed. In the absence of a request to deliver the will of thedecedent to the executor or devisees or legateesunder the will, it is the clerk'sduty under Article 1942, Vernon's Civil Statutes, to retain and preserve thewill.
A will may not be used as a munimentof title unless probated;and once probated, Section 90 of theTexas ProbateCode requires the county clerk to retain possessionof the originalwill, and probate thereof, in the absence of a court order

-3450-Hon. T. J. Rodgers, page 7 (C-714)

allowing the probatedwill to be removed to another place for Inspection.Very trulyyours, WAGGONER CARR Att,orney

Oeneral

By: Wade Anderson Assistant WA:ml
APPROVED OPINION COMMITTEE:
W. V. Geppert,Chairman PatBailey JamesMcCoy Gordon Cass Bill Allen Marietta Payne
APPROVED FOR THE ATTORNEY GENERAL By: T. B. Wright

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