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

Honorable Joe Resweber                 Op;nion No. C-396
County Attorney
Harris County Courthouse               Re:    Whether ,there is any pro-
Houston, Texas 77002                          vision under the Escheat
                                              Law of Texas whereby an
                                              es,tateof $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 unascertain-
                                              able number of unknown
                                              heirs and the ekpense of
                                              ascertaining the unknown
                                              heirs would far exceed the
                                              amount of money in the
Dear Mr. Resweber:                            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 'wherebyan 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,penseof ~ascertainingthe 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 are generally combined under
the single term i "escheat." 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 1963); Bona Vacantia Resurrected, 34
Ill. L. Rev. 171 (1939 .
     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~scheatproceedings, 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,
                   whenever a person dies Intestate, all of
         his isia;e shall vest immediately in his heirsat
         law but with l;heexception aforesaid 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 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 inte-
    state title to his ropert vested in his heirs at law. Loller
       &r&t    38 Tex 206 (18737. Carroll v. Fidelity & Deposim
    ltisd       771 (+ex.Civ.App.'l937 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.stratormerely 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.chw,ouldraise,the presumption under
    Article 3272 that any of.the heirs of,the dec,edenthave them-
    selves died intestate and without heirs, the,nin 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,ofVernon's Civil Statutes.
    Basically, this Article provides for the reporting to the
    State of perscnal property subj.ectto 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 ,personalproperty (1) of which


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


    the existence and whereabouts of the owner are
    unknown and have been unknown to the holder for
    more than seven (7) years and (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 there-
in 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 'reportedand 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
'which1s held under the conditions s,pecifiedin Articles 3272
or,'3272aof 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 Tex.Civ.App. 1926, afflrmed 5 S W 2d 131 (Te$.Comm.
App. 1928 f 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-
