A-tiwm~ IL -lkx~s March 5, 196.5

HonorableJoe Resweber CountyAttorney Harris County Courthouse Houston, Texas 77002

Dear Mr. Resweber: Op;nionNo. C-396

Re: Whether ,thereis any provision under the Escheat Law of Texas whereby an es,tate

of $l,lOO.OO or a portion thereofwhich has been in administration for approximately 20 years can escheat to the StaCe 'ofTexas when there are approximately 150 known heirs and an unascertainable number ofunknown heirs and the ekpense of ascertaining the unknown heirs would far exceed the amount ofmoney in the estate.

In your recent letteryou have requested the opinion of this office on the following question:

"Is there any provisionunder the Escheat Law of Texas 'wherebyan estate of $l,lOO.OO or a portion thereofwhich has been in administration for approximately 20'years, can escheat to the State'of Texas when there are approximately 150 known heirs and unascertainablenumber of unknown heirs, and the ex,penseof~ascertainingthe unknown heirs would far exceed the amount of money In the estate?"

Recourse to the authorities on the.common.lawreveal that the term "eacheat"has its origins ln.the French languageand, at common law, it designated the processwhereby real property, held by tenure, reverted to the lord,of the fee.upon the death of the granteewithout heirs. Personalpropertywas governed by the doctrine of "bonavacantla"which authorized the taking by the crown of property that was ownerless,orabandoned. These prerogatives of the crown at common law as developed and applied in the United States the single term i "escheat." are generally combinedunder Origins and Development of Escheat,

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61 Colum.L. Rev, 1319 (1961);Modern Rationales of Escheat, 112 U. Pa. L. Rev. 95 Ill. L. Rev. 171 (1939 1963); Bona Vacantia Resurrected, 34

. Until 1961 our principle statutoryprovision relating to the escheat of the estates of decedentswas Article 3272 of Vernon's Civil Statutes,which providesas follows:

"Ifany person die seized of any real estate or possessed of any personal estate,without any devise thereof, and having no heirs, or where the
owner of any real or personal estate shall be absent for the term of seven years, and Is not known to exist, leavingno heirs, or devlsee of his estate, such estate shall escheat to and vest In the State. Where no will Is recorded or probated in the countywhere such property is situatedwithin seven years after the death of the owner it shall be prima facie evidence that there was no will, and where no lawful claim is asserted to, or lawful acts of ownership exercised in, such property for the period of sevenyears, and this has been proved to the satisfaction~ofthe court, it shall be prima facie evidence of the death of the owner without heirs. Any onepaying taxes to the State on such property either personally or ~throughan agent, shali be held to be exercising lawful acts of ownership in such propertywithin the meaning of this title, and shall not be concludedby any judgment,unless he be made a party by personal service of citation, to such e~scheat

proceedings, if a residentof this State, and his address can be securedby reasonable diligence,but, if he be a non-resident of the State or can not be found, the personal service of citation shall be made upon any agent of such claimant, if such agent, by the use of reasonable diligence can be found; such diligence to Include
an investigation of the records of the officeand inquiry of the tax collector and tax assessor of the county In which the property sought to be escheated Is situated."

You state in your brief that the person whose estate is under administrationdied intestate In 1943 and it appears that there were In excess of 150 known heirs and an unascertainable number ofunknown heirs. According to Article 3314 of Vernon's Civil Statutes,which was in effect at that time and is Identical to Section 37 of the Texas Probate Code:

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Hoi. Joe Resweber, page 3 (c-396)

1, his whenever a person dies Intestate,all of isia;e shall vest immediately in his heirsat law but with l;heexceptionaforesaid shall still be ilable and ,subjectin their hands to the payment of the debts of the intestate;butupon the Issuance of letters testamentary or of administrationupon such estate, the executor or administrator shall have the right to possession of the estate as it existed at the death of the testator or intestate, with the exceptionaforesaid; and he shall recover possession of and hold such estate In trust to be disposed of in accordancewith ,law."
Consequently upon tha Instant of the death of the intestate title to his ropert &r&t 38 Tex 6 vested in his heirs at law.

20 (18737.Carrollv. Loller
ltisd 771 (+ex.Civ.App.'l937 Fidelity & Deposim
error ref ) Since there
were heirs of the ,decedentwho to&k title to-hisproperty at his death even though,sonemay,be unknown there was no escheat of his es&ateunder the provisions of Artl&le 3272.

In view of the fact this administrationhas been pending for so many years and the admini.strator merely possesses the property in questionas trustee for the heirs who are vested with title, we must consider whether ,titleto,any of the property possessedby the administratorhas possibly escheated.to,the State from any of the heirs of the decedent.

If facts existwhi.ch w,ouldraise,

the presumptionunder Article 3272 that any of.the heirs of,the dec,edent have themselves died intestate and without heirs, the,nin our opinion that portion of the decedent's propertywhich vested in such heirs would'be subject ,toescheatunder such Article.~

In addition, we further point out that in 1961 further legislationpertaining to escheat of personal property'was enacted In the form of Article 32,72a,of Vernon's Civil Statutes. Basically, this Articleprovides for the reporting to the State of perscnal property subj.ect to escheat and further provides for the~presumption of abandonment and escheat of the personalproperty reported.
Section l(c) of Article 3272a defines the term "subject to escheat" as follows:

"The term %ubject to e~scheat' shall include personal property presumed to be subject to escheat by the prima facie conclusions contained in Article 3272, includingall ,personal property (1) of which

,-1866-Hon. Joe Resweber, page 

### 4 (c-396)

the existenceand whereabouts unknown and have been unknown
more than seven 

### (7)years and of the owner are to the holder for (2) on which, from the knowledgeand records of the holder it appears that no claim or act of ownershiphas been asserted
or exercisedduring the past seven 

### (7)years and 

### (3)on which no will of the lastknown owner has been recorded or probated in the county where the property is situatedwithin the past seven 

### (7) gears."

The reportsunder Article 3272aare to be filed by the
-.. persons who hold such personal property. Sectlon l(a) of Article 3272adefines "person"and specifically Included therein is'the'term estate. In our opinion,any personal property held by the admmator in questionwhich comes within the definition of "subject to escheat" in Section l(c) of Article 3272awould be subject to being 'reported and escheatedpursuant to the proceduresprovidedunder Article 3272a orunder the alternateprocedures provided for in Article 3273 of Vernon's Civil Statutes.
Therefore,we answeryour questionby stating that any property held by the administrator of the estate in question 'which1s held under the conditions s,pecified in Articles 3272 or,'3272a

of Vernon's Civil Statutes Is subject to escheat thereunder.

.Inso answeringyour questionwe are not unmindful of the holdings in Ball v. Claiborne, 27 Tex. 217 

### (1863);Wiederanders
v. State, 

### 64 Tex. 

### 133 ltM5);State v. Black's Estate, 

### 51S W m.Civ.App. 1899 ; and GlllettesEstate v. State 

### 286' ' S.W. 

### 261 rmed 

### 5 S W 2d 131 (Te$.Comm. App. 1928f

Tex.Civ.App. 1926, affl to the effect that an escheat priceeding in district court~cannotbe maintainedwhile administration is pending upon an estate. These holdings were based upon the fact that the statutesrelating to escheatproceeding at the time these actionswere brought, required that it be alleged and proven that no letters of administration of the estate of the intestate who had died without heirs had been granted.

This statutory requirementno longer exists it having been omittedfrom Article 3273 by the Legislature In &he Revised Statutes of 1925. Therefore,we no longer consider these cases as authoritativeupon this question.

-1867-. -c

Hon. Joe Resweber, page 

### 5 (c-396)

SUMMARY
Any propertywhich is held by the administrator of an estateunder the circumstancesspecified in Articles 3272 or 3272a of Vernon's Civil Statutes is subject to escheat.
Very trulyyours,

WAGGONER CARR Attorney General

BY
Assistant

WOS:ml

APPROVED: OPINION COMMITTEE

W. V. Geppert, Chairman Pat Bailey George Black Harold Kennedy Jim Briscoe

APPROVED FOR THE ATTORNEY GENERAL By: Stanton Stone

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