Honorable J. H. Kidd, Jr. 

County Attorney 

Klngsville, Texas 

Dear Sir: 

Your letter 

on the above stated 

Opinion No. O-4447 

He: Is the County Judge of Kleberg 

County entitled to a commission 

as provided byArticle 3926, 

Vernon's Annotated Civil Statutes, under the given facts? 

requesting the opinion of this department 

question reads in part as follows: 

"The County Judge of Kleberg County, Texas, 

has requested a ruling und,er Artc. 3926, Subdivision One, as to whether or not under that 

Article he~is entitled to his commission under 

a will which has been probated In his Court, 

and said ~111 provides in paragraphs six and 

seven the following: 

"'Sixth: I name as Executor of this my 

will, my beloved son, James Morgan Chandler, 

and desire that no bond shall be required of 

him as such, and that he have absolute authority to manage, control and dispose of any part 

of my estate, or the whole of it, as he may see 

fit. 

"Seventh: It is my particular wish that 

no proceedings shall be had in the Probate Court 

with reference to the administration of my estate other than the probating of this will, and 

the returning of an inventory, appraisement and 

list of claims as prescribed by statute.' 

"The question has arisen as to whether he 

is entitled to his commission when the inventory 

and appraisement has been filed, and said inventory and appraisement showing the cash on hand 

at the time of the death of the testator, and 

being filed under paragraph seven of said will, 

as set out above. In taxing the costs on said 

probate of this will, the County Judge taxed 
, 

Honorable J. H. Kidd, Jr., page 2 o-4447 

costs of his commission allowed under Art. 3926, 

Subdv. A, and the executor of said will is contesting the payment of said commission reciting 

that under Willis vs. Harvey in 26 SW, 2nd Series, 

page 288, that the County Judge would not be entitled to this commission. In checking this case 

and the Statutes, it would appear that the case 

of Willis vs. Harvey is snot directly to the point, 

and the Court In that case specifically stated 

that the Act of Legislature referred to was not 

involved in that case." 

Article 3926, Vernon's Annotated Civil Statutes, provides in part: 

"The county judge shall also receive the 

following fees: 

"1 . A commisslon of one-half of one per 

cent upon the actual cash receipts of each 

executor, administrator or guardian, upon the 

approval of the exhibits and the final settlement of the account of such executor, administrator or guardian, but no more than one such 

commission shall be charged on any amount received by any such executor, admlnlstrator or 

guardian., 

1, 4, . . . . 

As we understand your request, you desire to know 

whether the County Judge is entitled to a commission on the 

cash on hand at thee time of the death of the testator, under 

Article 3926, supra. 

We have carefully considered the case of Willis, et 

al v. Harvey, supra, and believe that this case is directly 

In point and specifically answers the question here involved. 

Under the holding of the above mentioned case, it is our 

opinion that the above stated question must be answered in 

the negative, and is so answered. The term "receipts", as 

used in the statute above quoted does not embrace cash on hand 

at the time of the death of the testator. 

In the case above mentioned, the executors appealed 

from a judgment of the district court on appeal from the probate court allowing the county judge a commission on cash on 

hand at the date of the death of the testator. The testatrlx 

died at her home in Cass County, Texas, on May 21, 1927, leaving a will which disposed of her entire estate. By the terms 
‘ . 

Honorable J. H. Kidd, Jr., page 3 o-4447 

of the will the whole of the property, both real and personal, 

was divided Into equal shares of one-fourth each to three 

children and two grandchildren. HOP son and son-in-law were 

appointed executors of the will, which provided, "that no 

bond or security be required of them as executors." The will 

further provided: 

“7 . It Is my will that no 

had in the county court in the 

of my estate than to prove and 

and to return an inventory and 

my estate and list of claims." 

other action be 

administration 

record this will 

appraisement of 

'~ The will was duly probated on August 1, 1927. On August 9, 1927, an inventory, appraisement and list of claims 

was filed by the appraisers appointed by the probate judge to 

appraise the estate. The probate judge entered an order of 

record approving the inventory, appraisement and return of the 

list of claims. Thereafter, on or about December 1, 1928, a 

bill of costs was rendered by the county clerk to the executors of said will, which contained an item of $337.16 as onehalf of one per cent commission due the county judge on cash 

on hand belonging to the estate upon the approval of the inventory therein filed, the county judge's order of approval 

being entered on August 9, 192T0 That thereafter the executors filed a motion to re-tax the costs, and the motion was 

heard by the county judge, the successor to the plaintiff, at 

the February term, 1929, The motion to re-tax was overruled 

and the executors appealed. 

The court quoted Section 1 of Article 3926, supra, 

and then stated: 

"The act very clearly has in view the providing of compensation to the probate judge for 

his official control of estates, based on 'the 

actual cash receipts' shown by the exhibits, and 

the final settlement of the account of 'the executor.' But properly construing the Act, it is 

believed that the specific case presented here on 

appeal may not be regarded as within its scope and 

within its purpose. There is nothing in the words 

of the article to attach a different meaning capable of expressly embracing it. An independent 

executor is not included within the term 'executor,' as employed in the article, and the term 

'receipts' thereln used does not embrace cash on 

deposit in the bank at the death of the testator, 

The word 'executor' as used is made clear and 

specific by considering the associated words 'ad- 
, . 

Honorable J. H. Kidd, Jr., page 4 o-4447 

ministrator or guardian.' Judged from its associated words, the term 'executor' 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, 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 of accounting when duly presented to him by 

such executor or administrator or guardian. The 

official situation of an independent executor 

is different, and it is otherwise provided as to 

his legal duties and authority, The statute 

of this state authorizes administration independent of the control of probate jurisdiction where 

the testator has so indicated by the terms of 

the ~111 that such Is his desire. The independent executor so named in the will is qualified 

to act, and independently of the probate court, 

from the time the will appointing him is admitted 

to probate. Coleman v. Produce Co. (Tex. Civ. 

APP. 

1 

204 s.w. 382; Pepper v. Walling (Tex. Civ. 

APP. 195 S.W. 892; Roy v. Whitaker, 92 Tex. 346, 

48 S.W. 892, 49 S.W. 367. He need not necessarily 

return an inventory in order to make his executorship valid. Cooper v. Horner, 62 Tex. 356; Willis 

v. Ferguson, 46 Tex. 496. It is thought the term 

'actual cash receipts' should be held to speclfltally describe money received by the executor other 

than the cash or corpus of the estate which was 

on hand when the testator died, because the words 

used point to and Imply that meaning. And, too, 

another section of the statute, bearing upon the 

same subject-matter of compensation, makes it 

evident that such was the meaning that the Legislature intended should be put upon the term used 

in the presently considered article. The one 

section of the statute stands as the context of 

the other, and they may be compared and read together as a means of giving to the language used 

the meaning intended by the Legislature. By such 

sections (article 3689 and 3690) executors and 

administrators are allowed commission on 'all 

sums they may actually receive in cash' but which 

shall not include 'any cash which was on hand at 

the times of the death of the testator or intestate.' 

Also by article 4310, R.S., commissions are ex- 
Honorable J. H. Kidd, Jr., page 5 o-4447 

pressly denied to the guardian on 'Estate * * * 

first delivered.' The express shutting out of 

a commission to executors and administratiors 

'cash * * * on hand at the * * * death of the 

?&tator or intestate' and to guardians 'on the 

estate first delivered' is to be taken as an expression of legislative intent of the scope and 

purpose of article 3926. There is no difference 

in the meaning of the terms 'actually receive in 

cash,' as used in article 3689, and 'actual cash 

receipts,' as used in article 3926, and 'estate 

when first delivered,' as used in article 4310. 

The very purpose of the statute in authorizing 

an executor to act independently of control of 

the probate court is, as stated in Wilhelm's 

estate v. Matthews (Tex. NV. App.) 274 S.W. 251, 

752 : 'To avoid the usual costs and bother of 

regular adminFstratlon.'" 

It will be noted that Section 7 of the will under consideration is almost identical with Section 7 of the will considered by the court in the above mentioned case. As stated 

above, we think that the above mentioned case, specifically 

answers the question submitted in your inquiry, and that the 

County Judge is not entitled to a commission on cash on hand 

at the time of the death of the testator. 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By s/Ardell Williams 

Ardell Williams 

Assistant 

;W:GO:wc 

APPROW MAR 7, 1942 

s/GROVER SELLRRS 

FIRST ASSISTANT 

ATTORNEYGENERAL 

Approved Opinion Committee By s/BWB Chairman