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                         AUSTIX    11. TEXAS
                                  June 22, 1964

    Honorable Don Hall            Opinion No. C-272
    District Attorney
    Waco, Texas                   Re: Whether receipts from sale of
                                      securities by non-independent
                                      executor are subject to County
                                      J;lp;'s fee under Article 3926,
    Dear Mr. Hall:                     . . ., and related question.
         Your letter recites that during the course of adminlstra-
    tion, a non-independent executor sold various securities, and
    you request an answer to the following questions:
            'When the executor sold these securities belong-
         ing to the estate, did the total amount of money
         received from the sale constitute taxable cash re-
         ceipts under Article 3926 (l), Vernon's Revised
         Civil Statutes? If so, are net losses on the sale
         of individually inventoried items to be deducted
         from taxable cash receipts?"
         Paragraph 1 of Article 3926, V.C.S., allows the County
    Judge a fee of one-half of one per cent on the "actual cash
    receipts of each executor. . . *'
         It is well settled that cash on hand uoon a testator's
    death is not deemed "actual cash receipts."* Willis v. Harve&
    26 S.W.2d 288 (Tex.Civ.App. 1930, error ref.). The language
    of the cases, however, lacks uniformity with reference to the
    status of cash derived from disposition of the non-cash
    portion of the estate. Such lack of uniformity finds expres-
    sion in a diversity of opinions from this office.
         In Attorney General's Opinions Nos. ~~-1076 (1961) and
    O-5654 (1943) > we held that money derived from disposing of
    the corpus of the estate was "actual cash receipts." In
    Opinion No. WW-502 1958 , we held to the contrary. In
    Opinion No. ~~-664 t 1959! , we held that certain claims against
    an estate, when collected, were not subject to the fee in
    question. This latter opinion purports to overrule two
    earlier opinions to the contrary.




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Honorable Don Hall, page 2 (C-272)


     The right to the fee on receipts from sales of the corpus
was discussed at length in Lyles v. Oheim, 138 T    333 159
S.W.2d 102 (1942). The administrator paid the fE:'to tie
County Judge who supervised sale of the ranch. M th later
a successor county judge approved the annual accozzt 'demanded
the fee be paid to him and filed suit therefor. The'Court
said:
        'The sole question presented here is whether the
     commissions to be paid a county judge under Article
     3926 . . . on the receipts of an estate, are to be
     paid to the county judge who made the orders and
     approved the proceedings for the sale of property
     belonging to the estate . . . or whether such com-
     missions are to be paid to the county judge who
     later acts upon the annual account. . . .
     The court said $hat "each county judge was paid the
amount due him . . . , and in explaining its reasons said:
       "The law places the duty on the county judge to
    hear applications for the sale of property belong-
    ing to an estate, and to order it sold. It also
    places on him the duty to see that such sales are
    made in accordance with his orders, and that the
    administrator in all things complies with same.
    He must check and approve such sales, and order a
    distribution of the proceeds derived therefrom.
    The law allows the county judge a fee of one-half
    of one per cent 'upon the actual cash receipts' re-
    ceived; and since he must perform the duties im-
    posed upon him by law, surely he is entitled to
    such commissions upon the approval of such accounts.
    The reason of this construction rests upon the
    ground that the judge performing these duties is
    entitled to be paid therefor. . . .'
     It may be argued that the statements by the Supreme Court
are dicta, but it is obvious that the court gave the whole
matter very careful attention,,and Its holding that the first
judge was properly paid appears to have been deliberately
made. At the very least, this authority would appear to be
strong1   ersuasive   Wiener v. Zwieb, 105 Tex. 262, 141 S.W.
771, 77% p1911); 15'Tex.Jur.Zd 594, courts, Sec. 135.
     Attention is directed to the fact that the duty is on the
county judge to supervise sales of personal property as well
as of real estate. Sections 331 et seq., Probate Code.


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        Honorable Don Hall, page 3 (C-272)


             In Goodwin v. Downs, 280 S.W. 512 (Comm.App. lg26), the
        administrator completed certain road building contracts
        entered into by the decedent. The issue was whether the fee
        of the judge was to be based on gross cash received or on net
        profits after payment of expenses. The court quoted from the
        Civil Appeals opinion to the effect that such fee was taxable
        upon all cash received "from the sale of property owned by
        decedent at the time of "on
                                his death,                  of debts,
        rents, etc., and "on actual cash remainin
        the administrator and coming fromde%t"iZ          %%e"~e-
        cedent's business." (Emphasis added.)
             The Commission of Appeals did not find fault with any
        portion of the holding of the lower court as above set out
        other than to indicate that the fee was to be computed on
        gross receipts rather than the net remaining. The court said:
                "The county judge has only one way to receive
             any compensation for his supervision of an ad-
             ministration. His responsibility is great. Re
             must study the reports and approve the accounts,
             including-receipts and disbursements." (Emphasis
             added.)
             Willis v. Harvey  26 S.W.2d 288 (Tex.Civ.App. 1930, error
        ref.), involved cash &n hand at the date of death of the tes-
        tatorheld by an independent executor. The following language
        by the court indicates, in our opinion, that the court deemed
        receipts from sales of corpus to be subject to the fee:
                "The act very clearly has in view the providing
             of compensation to the probate judge for his offi-
             cial control of estates, based on 'actual cash re-
             ceivts' shown bv the exhibits, and the final settle-
             ment of the account of 'the executor'         Judged
             from its associated words, the term texe&iort was
             meant to refer to the executor administering the
             estate of the testator under the control of the pro-
             bate court. Such class of executors are required,
             as administrators and guardians are, to present to
             the probate court in an exhibit of accounting, under
             oath, all sums in cash derived from sales, collec-
             tions and like sources in due course of administra-
             tion. The probate judge is required to examine and
             approve all such exhibits. . . . The official
             situaiion of an independent executor is different.
             . . .   (Emphasis added.)



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Honorable Don Hall, page 4 (C-272)


     Referring to the statute in question it is said in 18
Tex.Jur.2d 641, Decedents' Estates, Sec. 621:
     I,
      . . . This commission is not limited to receipts
     arising from sales of property collection of debts,
     rent of oronertv. etc.: it mav'be collected on re-
     ceipts arising ?rom the conduct of a business. . . ."
     (Emphasis added,)
     Although the question is not free from difficulty because
of language In the cases mentioned below, we are constrained
to hold in the light of the above authorities that the fee in
question is properly due on receipts from sale of the securi-
ties mentioned, with the exception of Government bonds which
are cashed. In Opinion No. V-398, this office held that the
fee was not due on receipts from United States Government
bonds which are cashed, relying upon Terrill v. Terrill, 189
S.W.2d 877 (Tex.Civ.App. 1945, error ref.}.
     In Gilbert v. Hines, 32 S.W.2d 876 (Tex.Civ.App.
a guardian's fee was claimed under Article 4310 V.C.S.
viding for fee on “estate . . . first deliveredl'),on funds
collected from the Veterans' Bureau for compensation and war
risk insurance. The fee was disallowed,
     In McCrory v. Wichita Count   261 S.W.2d 867 (Tex.Civ.
App. 1953, error ref.), the coun i judge's fee was disallowed
on cash received by a guardian from aliquidatingtrust estate.
The court was careful to point out:
       "The 'estate first delivered' to appellant was
    the distribution made to her by the trustee. The
    real property of the trustor was never delivered to
    her. Her only right was to receive for her ward
    one-twenty fourth of whatever amount the trustee
    converted into cash. As guardian, she could not
    have claimed a commission on the estate first de-
    livered."
     There is admittedly language in the two cases last above
mentioned from which a conclusion contrary to the one we have
reached could be urged. It is, therefore, our duty to ha,rmo-
nize the decisions if at all possible. We direct attention
to the fact that in neither of said two cases is the county
judge required to supervise a sale of property. In each case,
the representative of the estams    merely engaged in collect-
ing certain claims of the estate. This is in line with the



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        Honorable Don Hall, page 5 (C-272)


        Terrlll case, supra, denying the fee on the cashing of Govern-
        ment obligations and with our Opinion No. ~-664, supra, deny-
        ing the fee on monies received by a guardian on claims for
        social security and for workmen's compensation. Because we
        believe that the language of the courts in the L les Goodwin
        and Willis cases, supra, is more nearly in poin+- as it relates
        to s-as      distinguished from the collection of claims, we
        helmt     the receipts from sale of the securities are subject
        to the fee in question.
             In the Goodwin case, supra, it is pointed out that the
        fee is assessed upon the gross receipts received by the estate.
        The question, therefore, of whether a particular security was
        sold for more or less than its estimated value as set out in
        the Inventory would be immaterial. This answers the second
        portion of your inquiry.
             Attorney General's Opinion WW-502 is hereby overruled to
        the extent that it is in conflict with this opinion.
                              S U M M.A RY
                  Gross receipts from the sale of securities
             by a non-independent executor are subject to
             the county jud e's fee provided in Paragraph 1
             of Article 392% , V.C.S. However, receipts from
             the cashing of U. S. Government bonds are not
             subject to such fee.
                                        Yours very truly,
                                        WAGGONER CARR
                                        Attorney General of Texas




        JAS:da
        APPROVED:
        OPINION COMMITTEE
        W. V. Geppert, Chairman
        Bill Allen
        George Gray
        Grady Chandler
        APPROVED BOR THE ATTORNEY GENERAL
        By: Stanton Stone
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