                                                  R-931

     TEEATTORNEYGENERAL
             ow TEXAS
                  AUSTIN   PI. TEXAS




                      December 16, 1947

Hon. John Ii.Winters
Executive Direotor
Department of’Public Welfare
Austin, Texas                Opinion HO. v-456
                               Re:     Facts to be taken
                                       Into considerstlon
                                       in passing on an
                                       appllcatlon for
                                       Old Age Assistance
                                       in the given case


          W. B. Blggs died testate, leaving certain
property to his two sisters and mentioning Chas a H.
Blggs, the applicant for Old Age Assistance. Subse-
quently the sisters died Intestate. Out of these
faots arise the following questions propounded by
you:
          “1. Does the provision In the
     will requiring the sisters to sup-
     port and maintain the applicant -for
     the remainder of his life constitute
     a lien against the property to such
     an extent that the corpus of the es”
     tate can be used for the maintenance
     of the applicant?
          "2.  In view of the fact that
     the estate would eventually be de-
     pleted If any portion of It were sold,
     can the heirs, under the terms of the
     will, sell zany portion of the corpus
     of the estate and use the proceeds for
     our appllaantls maintenance?
          “3. If, under the terms of the
     ~111, they might sell the corpus of the
     estate for his maintenance, but are un-
     willing to do so, could the department
Hon. John E. Winters - Page 2    (v-456)


     consider this as a potential avall-
     able resource for meeting the needs
     of our applicant?"
          We note from a copy of the will which ac-
companied your request that the second through the
fifth Items provide for the distribution of the
testator's property, both real and personal. The
principal beneficiaries were the two sisters of.the
testator. The sixth provision of the will is as
follows:
          'SIXTH. The properties here Fn
     willed to my two sisters, Mrs. M. 5.
   ' Montgomiry and Mrs. Sallie E. Henry
     are so willed with the understanding
     and agreement on their part, that they
     will jointly take care of my brother
     Chas. H. Biggs during his lifetime,
     provide him a home and the necessities
     of life."
          Your first two questions relate to the na-
ture of the Interest which may have been created In
behalf of Chas. Ii.Blggs. In vlew of our answer  to
your third questlon which follows, we do not find it
necessary to answer questions one and two.
          Art. 695c,   Sec. 20, V.A.C.S., provides, In
part, as follows:
           %eo . 20. Old Age Assistance shall
     be glven under the provisions of this
     Act to any needy person;



          “(5)  Who has not sufficient Income
     or other resources to provide a reasonable
     subsistence compatible with health and de-
     cency. Provided that In consideration of
     lncoie and resources actually available to
     the applicant the State ageno,yshall not
     evaluate Income and resources which mas be
     available only to the relatives of the-ap-
     pllcant. Income and resources to be taken
     Into consideration shall be known to exist
     and shall be available to the appllcant.An
     applicant for Old Age Assistance shall not
Hon. John H. Winters - Page 3   (V-456)


     be d‘eniedassistance beoatie of the
     existence of a child or other rela-
     tive, except husband or wlfej whg Is
     able to contribute to the appllcant*s
     support, and no Inquiry shall be made
     Into the financial ablllty of ~sa$d
     child or other relative, exb&t hus-
     band or wife, in determining the appli-
     cant's eligibility. The applicant's
     child or other relative, exoept'or hus-
     band or wife, is %o be treated by the
     State Department In the'same way as any
     person not related to the applicant; any
     aid or contribution to the applicant
     from such child or other relative, except
     husband or wife, must actually exist In-
     fact, or with reasoheble dertaintg. be a-
     vailable in the future to oonstltute a
     resource to the applicant." (Emphasis ad-
     aed)
          The reading of certain cases would indicate
that a trust or lien was created by the will In favor
of the claimant. ;Busb t!v. Lynn, 37 Tex. 146; (liodard
   Godard 197 S.W: (267554; Low v. Ra~maey 122 S.W.
11i7. On ihe other haad, other cases Indicate that no
trust or lien was created. Brannon v. Morgan, 106 S.W.
(2a) 841; Darragh v. Barmore, 242 S.W. 714.
          If the holders of the property are falling
and refusing to furnish maintenance and support for the
cla,lmanta difficult lawsuit will be required to deter-
mLne the correctness of such action. Undersuchclrcum-
stances, we do not believe the aid to the olalmant ex-
ists or Is navallable" with reasonable certainty.
          The expressed Intention of the Legislature was
to restrict the Department of Public Welfare to a con-
sideration of resources actually available or reasonably
certain. Assuming, but not deciding, that the applicant
does have a lien on the property in question, It Is oer-
talnly a rather tenuous claim, and could not be consider-
ed an existent source of support.
          It would be contrary to the general spirit of
the Old Age Assistance stetute to enlArge the quoted pro-
vision so as to include money or property not aotually
received but-that which poteutlalbmlght be received.
          Therefore, you are %?espectfullyadvised that
the Department of Public Welfare shoti& not take tnto
                                                          l   ..




Hon. John Ii.Winters - Page 4    (v-456)


consideration any Interest which Chas. H. Blggs may
have received under the will of his brother In pass-
ing on the applloantls qualifications for assistance.
                     SUMMARY
          Under Art. 6%c, Sec. 20 (5), V.C.S.,
     the Department of Public Welfare should
     not consider any potential resouroe of an-ap-
     pllcant for Old Age Asslstance,which h@s
     not been aotuallg received or is not a:rka-
     sonably certain available source of support.
                            Yours very truly'
                         ATTORREYG~BRALOF         TEXAS




                                - 1CartlnHarris
                                  Assistant


                         APPROVED:




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