Honorable J.H. Kidd, Jr.

CountyAttorney Klngsville, Texas

Dear Sir:

Your letter
on the above stated OpinionNo. O-4447 He: Is the County Judge of Kleberg County entitled to a commission
as providedbyArticle 3926, Vernon's Annotated Civil Statutes, under the given facts? requesting the opinion of this department question reads in part as follows:
"TheCounty Judge of Kleberg County, Texas, has requested a ruling und,er Artc. 3926, Subdivision One, as towhether or not under that Article he~is entitled to his commissionunder a will which has been probated In his Court, and said ~111 provides inparagraphs 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 shallbe required of him as such,and that he have absolute authority to manage, control and dispose of any part of my estate, or thewhole of it,as he may see fit.
"Seventh: It is my particularwish that no proceedings shallbe had in the Probate Court with reference to the administration of my estate other than the probating of thiswill, and the returning of an inventory,appraisementand list of claims as prescribedby statute.'
"Thequestion has arisen as to whether he is entitled to his commissionwhen 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 saidwill,
as set out above. In taxing the costs on said probate of thiswill, the County Judge taxed,

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

costs of his commissionallowed under Art. 3926, Subdv.A, and the executor of saidwill is contesting the payment of said commission reciting that under Willis vs. Harvey in 26 SW, 2nd Series, page 288, that the County Judgewould not be entitled to this commission. In checking this case and the Statutes, itwould appear that the case ofWillis vs. Harvey issnotdirectly to the point, and the Court In that case specifically stated that theAct of Legislaturereferred to was not involved in that case."
Article 3926, Vernon's Annotated Civil Statutes, provides inpart:

"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 understandyour request, you desire to know whether the County Judge is entitled to a commission on the cash on hand at theetime 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 isdirectly In point and specificallyanswers the question here involved. Under the holding of the above mentioned case, it is our opinion that the above statedquestionmust be answered in the negative, and is so answered. The term "receipts",as used in the statuteabove quoted does not embrace cash on hand at the time of the death of the testator.

In the case above mentioned, the executorsappealed from a judgmentof the district court on appeal from the probate court allowing the county judgea 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 thewill thewhole of the property,both real and personal,
was divided Into equal shares of one-fourth each to three childrenand two grandchildren. HOP son and son-in-lawwere appointed executors of thewill, which provided, "thatno bond or securitybe required of them as executors." The will furtherprovided:

“7

. It Ismy will that no had in the county court in the ofmy estate than to prove and and to return an inventoryand my estateand 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,appraisementand list of claims
was filed by the appraisers appointed by the probate judge to appraise the estate. The probate judge enteredan order of record approving the inventory,appraisementand return of the list of claims. Thereafter, on or aboutDecember 1, 1928, a bill of costswas rendered by the county clerk to the executors of saidwill, which contained an item of $337.16 as onehalf of one per cent commissiondue 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 executorsappealed.

The court quoted Section 1 of Article 3926, supra, and then stated:

"Theact 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 settlementof the account of 'theexecutor.' 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 itspurpose. There is nothing in the words of the article to attach a different meaning capable of expressly embracing it. An independent executor is not includedwithin the term 'executor,' as employed in the article, and the term 'receipts'therelnused does not embrace cash on deposit in the bank at the death of the testator, Theword 'executor'as used is made clear and specificby considering the associatedwords 'ad-, .

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

ministrator or guardian.' Judged from its associatedwords, the term 'executor'was meant to refer to the executoradministering the estate of the testatorunder the control of the probate court. Such class of executorsare required, as administratorsand 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 Indue course of administration. The probate judge is required to examine and approve all such exhibits of accountingwhen duly presented to him by such executor or administratoror guardian. The official situation of an independent executor is different, and it is otherwiseprovided as to his legalduties and authority, The statute of this stateauthorizes administration independent of the control of probate jurisdictionwhere the testator has so indicatedby the terms of the ~111 that such Is his desire. The independent executor so named in thewill is qualified to act, and independentlyof the probate court, from the time thewill appointing him is admitted to probate. Colemanv. 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 'actualcash receipts' shouldbe held to speclfltallydescribe money received by the executor other than the cash or corpus of the estatewhich was on handwhen the testatordied, because the words used point to and Imply that meaning. And, too, another section of the statute,bearing upon the same subject-matterof compensation,makes it evident that suchwas the meaning that the Legislature intended shouldbe put upon the term used in the presently consideredarticle. The one section of the statute standsas the context of the other,and they may be comparedand read together as a means of giving to the language used themeaning intendedby the Legislature. By such sections (article 3689 and 3690) executorsand administratorsare allowed commission on 'all sums theymay actually receive in cash' but which shall not include 'anycashwhich was on hand at the times of the death of the testator or intestate.' Also by article 4310,R.S., commissionsare ex-Honorable J. H. Kidd, Jr., page 5 o-4447

presslydenied to the guardian on 'Estate* * * first delivered.' The express shutting out of a commission to executorsand administratiors 'cash* * * on hand at the * * * death of the ?&tator or intestate'and to guardians 'onthe estate firstdelivered' 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 'actuallyreceive in cash,' as used in article 3689, and 'actualcash 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 independentlyof control of the probate court is,as stated inWilhelm's estatev. Matthews (Tex. NV. App.) 274 S.W. 251, 752 : 'Toavoid the usual costs and bother of regular adminFstratlon.'"

Itwill be noted that Section 7 of the will under consideration is almost identicalwith Section 7 of the will consideredby 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/ArdellWilliams Ardell Williams Assistant

;W:GO:wc

APPROW MAR 7, 1942 s/GROVER SELLRRS FIRST ASSISTANT ATTORNEYGENERAL Approved Opinion CommitteeBy s/BWB Chairman