A-tiwm~ IL -lkx~s 

March 5, 196.5 

Honorable Joe Resweber 

County Attorney 

Harris County Courthouse 

Houston, Texas 77002 

Dear Mr. Resweber: 

Op;nion No. C-396 

Re: Whether ,there is any provision under the Escheat 

Law of Texas whereby an 

es,tate of $l,lOO.OO or a 

portion thereof which has 

been in administration for 

approximately 20 years 

can escheat to the StaCe 

'of Texas when there are 

approximately 150 known 

heirs and an unascertainable number of unknown 

heirs and the ekpense of 

ascertaining the unknown 

heirs would far exceed the 

amount of money in the 

estate. 

In your recent letter you have requested the opinion of 

this office on the following question: 

"Is there any provision under the Escheat 

Law of Texas 'whereby an estate of $l,lOO.OO or 

a portion thereof which has been in administration 

for approximately 20'years, can escheat to the 

State' of Texas when there are approximately 150 

known heirs and unascertainable number of unknown 

heirs, and the ex,pense of ~ascertaining the unknown 

heirs would far exceed the amount of money In the 

estate?" 

Recourse to the authorities on the.common.law reveal that 

the term "eacheat" has its origins ln.the French language and, 

at common law, it designated the process whereby real property, 

held by tenure, reverted to the lord, of the fee.upon the death 

of the grantee without heirs. Personal property was governed 

by the doctrine of "bona vacantla" which authorized the taking 

by the crown of property that was ownerless,or abandoned. 

These prerogatives of the crown at common law as developed 

and applied in the United States 

the single term i "escheat." 

are generally combined under 

Origins and Development of Escheat, 

-1864- 
Hon. Joe Resweber, page 2 (C-396) 

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 statutory provision relating to 

the escheat of the estates of decedents was Article 3272 of 

Vernon's Civil Statutes, which provides as follows: 

"If any 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, leaving no 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 

county where such property is situated within 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 seven years, and this has been 

proved to the satisfaction ~of the court, it shall 

be prima facie evidence of the death of the owner 

without heirs. Any one paying taxes to the 

State on such property either personally or 

~through an agent, shali be held to be exercising 

lawful acts of ownership in such property within 

the meaning of this title, and shall not be 

concluded by 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 secured by 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 office and 

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 administration died intestate In 1943 and it appears that 

there were In excess of 150 known heirs and an unascertainable 

number of unknown 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: 

-1865- 
- 

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;he exception aforesaid shall still 

be ilable and ,subject in their hands to the payment 

of the debts of the intestate; butupon the Issuance 

of letters testamentary or of administration upon 

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 exception aforesaid; and he shall recover 

possession of and hold such estate In trust to be 

disposed of in accordance with ,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. Carroll v. 

Loller 

ltisd 771 (+ex.Civ.App.'l937 

Fidelity & Deposim 

error ref ) Since there 

were heirs of the ,decedent who to&k title to-his property at 

his death even though,sone may,be unknown there was no escheat 

of his es&ate under the provisions of Artl&le 3272. 

In view of the fact this administration has 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 ,title to,any of the property 

possessed by the administratorhas possibly escheated.to,the 

State from any of the heirs of the decedent. 

If facts exist whi.ch w,ould raise, the presumption under 

Article 3272 that any of. the heirs of, the dec,edent have themselves died intestate and without heirs, the,n in our opinion 

that portion of the decedent's property which vested in such 

heirs would'be subject ,to escheatunder such Article.~ 

In addition, we further point out that in 1961 further 

legislation pertaining to escheat of personal property'was 

enacted In the form of Article 32,72a,of Vernon's Civil Statutes. 

Basically, this Article provides 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 personal property 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, including all ,personal property (1) of which 

,-1866- 
Hon. Joe Resweber, page 4 (c-396) 

the existence and 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 knowledge and records of the holder it appears 

that no claim or act of ownership has been asserted 

or exercised during 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 situated within the past seven (7) 

gears." 

The reports under Article 3272a are to be filed by the -.. 

persons who hold such personal property. Sectlon l(a) of 

Article 3272a defines "person" and specifically Included therein is'the'term estate. In our opinion, any personal property 

held by the admmator in question which comes within the 

definition of "subject to escheat" in Section l(c) of Article 

3272a would be subject to being 'reported and escheated pursuant 

to the procedures provided under Article 3272a or under the 

alternate procedures provided for in Article 3273 of Vernon's 

Civil Statutes. 

Therefore, we answer your question by stating that any 

property held by the administrator of the estate in question 

'which 1s held under the conditions s,pecified in Articles 3272 

or,'3272a of Vernon's Civil Statutes Is subject to escheat 

thereunder. 

.In so answering your question we 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, 51 S W 

m.Civ.App. 1899 ; and Glllettes Estate v. State 286' ' 

S.W. 261 rmed 5 S W 2d 131 (Te$.Comm. 

App. 1928 f 

Tex.Civ.App. 1926, affl 

to the effect that an escheat priceeding in district 

court ~cannot be maintained while administration is pending 

upon an estate. These holdings were based upon the fact that 

the statutes relating to escheatproceeding at the time these 

actions were 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 requirement no longer exists it having been 

omitted from Article 3273 by the Legislature In &he Revised 

Statutes of 1925. Therefore, we no longer consider these cases 

as authoritative upon this question. 

-1867- 
. -c 

Hon. Joe Resweber, page 5 (c-396) 

SUMMARY 

Any property which is held by the administrator 

of an estate under the circumstances specified 

in Articles 3272 or 3272a of Vernon's Civil 

Statutes is subject to escheat. 

Very truly yours, 

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 

-1868-