### HE A OR~'EY GENERAL
OFTEXAS

Hon. J. D. Looney Countg.AudiFor Boston, Texas
Dear 

### Sir: Opinion No. C-5704 “’ Re: Whether conversion into ca’kh of U-S; Government bond’5 owned by an estate& gives rise to “actual cash receipts upon which the county judige would be entitled to 8 commissfon of tinehalf of one per cent under Article 

### 3926,R.C.S.
Your letter or MaPch 31, 1944, requesting the opinion of this department upon the above stated question Peaas as follows:

“Since receipt of your Opinion No. O-5654, dated November 8, 1943, written by Mr. J. Arthur Sandlfn, ana approved by you as First Astilstant Attorney General, construing Art. 3926 RCSas applied to the facts submitted by me relative to commissions of County Judge on liquiaa,ting alvlaenas in the amount of $255;659.80 as reported by Mrs0Helen Seeger, Aaministratrlx of the Estate of W, J. Buchanan, Deceased, .9further questfon has arisen with respect to the sppllcabillty of the County Judge’s commissions under Art 0 3926,to U, S. Government Bon& .whfch were sold bg the Adminlstratrix in order to pay Federal Estate taxes and Texas Inherftanoe taxes,

“The AdminfstPatrix sold U.S. Government Bonds to the amount of $3,136,06g.‘J.4 in order to raise mocey tb help pay Federal Estate taxes and Texas Inherftance taxes Q These bonds were sold without getting an order of the Court, but are Pepopted, in Exhibit B of the fPrst’ annual accounting of the Aclmfnistratrfx undar Capital Receipts along with seven other Items of cash receipts. A copy of Exhibit B fs aMached hereto.

~“Counsel for the Administratrix now contends that cash receipts from the sale of these bonds is not subject to one-half of one per cent conrmission for tka County Judge un&er Apt. 3926 RCSbecause said bon& wereHon. J. D. Looney, page 2 

### o-5704

bold for the purpose of ralslng money to help pay taxes, and further because counsel claims the U.S. Goternmtint held a lien on said bonds for the payment of said taxes.

“You,.*’opinion No, 

### 0-5654,as above referred to, is a very comprehensive one; and under this oplnlon it is my contention and. also. that. of the County Judge that said commission is appllcable’to cash receipts realized from the sale of these bonds as set pouter above, regardless of whether they were sold to pay taxes or whether OPnot the U. S, Government had a lien on them for the payment of taxes,

“The County Judge’s cominlsslon has already been paid by the Admlnlstratrix~on all Items showiildiaer Capital Receipts an&Income Receipts of~‘the’attached copy of Exhlblt B of the aforementioned annual accOunt, with the exception of the item checkea in red, which 1s the’ lt.em of cash received from the sale of Governmerit bonds for the purpose of paying taxes e The-Cbunty Jiidge has withheid his commission on this Item awaltlng a further opinion from you as to the applicablllty of this commission L

“I shall appreciate it very much If you will glve me your further opinion as to whether or nbt onehalf of one per cent commlssion can legally be assessed by the Gounty Judge on the Item under Capital Receipts of PBonils sold to pay taxes In the amount of $3,136,069.14.‘
,”

The commissions allowed the county judge under Article 3926 are upon ~“the actual cash receipts’ of each executor,’ &dminlstrator, or guardfan, upon the approval of the exhibits, and. the fln.al settlement of the account e

. D

.’

It Is well settled that cash on hand or in the bank at the death of the testator 1s not “actual cash receipts” wlthin the rnearilng of ‘the a’bove statute, and no CommlssiOn accrues thereon In favor of the county judge, 

### 25Tex. Jur. 260; Wlllls V- Harvey, 

### 26S.W. (2a) 

### 288,error refused a In our opinion No. 

### o-5654,written in ar>swer to an earlier inquiry from you, we held that “#hen, in the course of an aamlnfstratlon, part of the corpus of tne estate 1s converted into cash, the county judge 1s entitled to 8 commfaslon on the amount of such cash.” The answer to your present inquiry, therefore, turns upon~‘the questlon of whether U.S. Government bonds owned.by an estate represent “cash on hand” prlor to their conversion into money.

Our opicion No, 

### 0-5654held in effect that corporate dook ala not become “cash” until Its converslon Into money.Hon, J. D. Looney, page 

### 3 O-5704

Although the d,ecisions are not un.anlmous, we balieve the weight of authority supports a holding that U, S. Government bonds likewise cannot be considered’ as “cash” until they are converted into moneyO In re KeePs Estate 2 P. 

### (2a)806, (N,M,:; fin re Chamberlain’s Estate, 115 PO f2a 235, ” on second appeal., 132 P. (2d) 

### 488 (California District Court of Appeal) ; Mann, 

### 7 Am.‘Dec: 

### 416;State V. Darby, 

### 165SOW. (2d) 

### 419 (MO.); Neufield V. U.S., 

### 1.18 F, (2d) 

### 375;Cou,lter v. State, 39 S, W. 

### 576 (Tex. 

### Cr.App.); Simpson v, Goggin, 

### 5 S,W. (2d)610 (Tex, Clv. App.)’ (holding that checks by persons or corporations are not “cash”) O See also Willis v. Harvey, supra, aherein i.t IS stated: “It Is ,?ihought the term ‘actual cash receipts’ should, be held to specifically describe monexL. 6 Oi”

Wedo not regard as persuaslve the fact that the U.S. Government had a lien on the bon&, and that the p”Ar;;;; of selling the bonds was to pay Federal and State taxes. exists in favor of the U. 9
,,Government on all estates of decedents on which estate taxes are due, and to hold that this~ avoided the obligation to pay commissions would deprive the county judge of his commissions in all exceptional,lg large estates D In our opinion the language of Art, 

### 3926fails to support such a construC:tfon. With reference to the raising of the money to pay taxes contention, we call attention to our opinion No. 

### 0-811,,wherein we held that the county judge was entitled to his commission on money borrowed by the executor to paysthe claims against the astate. Further, in a case wherein an administrator carried on a poea construction con~tract of a decedent, Judge Powell of the Commission of Appeals said:

‘ “The court seems to lay napchstress on the fac,t that as soon as the i;our:t,ies paid the administrafor for the road work, the iatter had to pay it out in expenses connected wi,th tCie oomtrv,ction of the roa&, Wedo not think the time or manner of its disburz;mznt has anythimo do witpl the fees of the county 3 R since he, unlike execu,tors and adSfinistrators, receives no compensation, on disbu:3eme::~ts 6
This decision allowed a commission ,to ,the judge on,these re::a.ip’tis. Goodwin V. Downs, 

### 280SOW, 512,

From the foregoingp it follows that we are of the opinion that the sale of ,the eo?lds represented t;e conver5 ia::.. of assets of the estate ir..to “ae’-L;zal cash receipts, and the coi;s,tg judge is entit~led to his sta~tuto ’ry commission thereon,Hon. J. D. Looney, page 4

JAS:AMM:wc 

### O-5704

Yours veri truly
ATTORNEY

GENERAL

OFTEXAS

By a/Jo Arthur SiXndlin 

### J.”AFC-iur Sanalin Assistant

APPROVED

APR'22, 1944 s/Gee. P. Blackburn (Acting) ATTORNEY GENERALOFTEXAS Approved Opinion Committee By s/BWB Chairman