                                                               320



     OFFICE   OF THE ATTORNEY GENERAL    OF TEXAS
                        AUSTIN




Hoaorable L. 01 Bowel1
Aoting County Attorney
BoVio County
Texorkaru, fexar


Dear Sir%     '




                                      an's general bond sl-
                                      on file is suffioient
                                      er double the amount
                                       atie ~1~8 double the
                                       or any pe~00nal prop-
                                        the hands of the



                                by the 48th Legislature,
                                Regular SeasIon, 1943.




     eassry for the guardian to file a *peol.+laeler
     bond In double t&e amount for ohloh real eetatr
     is sold where the guardlan*r general bond al-
     ready on file ir auffioient to oover double the
     amount of the sale plus double the amount of any
     personal propert in the hand8 of the guardian
                      8 rale. ,
     at the time of t3;
                                                            321


Honorable L. C. Bosvell, page 2


           'The intention of this amendment is to
      &arify the old statute but It still does not
      clearly indioate vhether or not It 14 neoes-
      tmry to file a speolal as184 bond or merely
      to file an order of the County Judge approv-
      ing the guardlan~r general bond vhere it is
      mrrlolent .*
          Article 4141, Vernon~s Annotated Civil Btatutea
of Texa8, require8 the guardianof the ertate of 8 vard
to give a bond a8 therein mentioned au a quallfioatlonof
the guardlM.'
          Bowe Bill 482, Aots of the 48th Legl4l'ature,
Regular g4344lon,1943, aend-    Art1ol.e4201 and Artiole
4216 V8rnontr Annotated Civil statutes of Texas, r8ads In
part aa rollovat
          : "Art. 4201.
           aAn order for the sale of real estate shall
      rtatet
          "1. The property to be sold, giring~suoh
     deaoriptlon of It ad will Idsntffy It.
          '2. Whether it Is to be sold at publie
     auction or at private 881.8,and if at publlo
     motion, the time end place of suoh aale.
            "3. The necearlty and purpose of ruoh eale.
          "4. That no sale of real estate made by
     the guardian rball be conflmed, nor ahall title
     of the ward to euch real estat8 pars to thg pur-
     chaserunless and until it shall ffrrt be found
     and determined by the Court, by an order duly
     made and entered, ,thatthe guardIan has flied a
     good and auffioient bond in an amount equal to
     tvioe the amount for vhI&.aaid real estate 14
     $016, and that the suretI84 on 4uch bond are sol-
     vent, provided, however, that where the aale of
     such reel eetate 14 made to the owner or holder
     of’a secured clslm agelnat the estate, and the
                                                          322




HOnO~b18 &I C. BO4U812, Page      3


    49e 14 of the real estate aeourlng such olaim
    and is in fu21 payment, liquidation,and aatls-
    r.30ti0nthereof, orilythe amount 0s Cash, if any,
    aotually reoeived by auoh guardian in 8~~844 or
    the amount neoersary to pay, llqufdate and eotls-
    fy auoh olairnin-f'ull,ahall be aonaidersd ia
    pa84lag upon the 8uiriOi=0y 0s the bond aa here-
     lnabove    rq,ulred.
         45, It ahall require the s&e to be m4d4
    and the report th4reor to b4 rqturned to the
    Court lt~auoordanos rlth the UW.~
         . * . . .



          “At aaj   ti4W after     43Xpi~tiOttOf fiY4
                                 the
     (5) day8   +rter the rii~,or   a report 0s 4al4,
    the'CoUrt  ah811 inquire iato   the manner in vhioh
    au& 4ti8 Va4 llode &Id hear 8YidenC4 in support
    of or against 4uoh report, and if 4ati4fi8d that
    rwh   4814 wa4 fairly mad4 and la Onaiosalty uith
    lav aud thet the gpardipn ha8 an file a good atid
    suffioiknt band in an amount equal to tuioe the
    valu4 fop vhiOh aald +eal eatat is being sold,
    and if and when the guardian14 ea3.dbond ha4
    been examined by the Couzt and found to be in
    the amount above required vlth good and auPS&
    oient ruretiba thereon, a4 evidenced by 8n order
    duly 4md4.and entered by th8 Court to that ef-
    f%Ot, the Court shall oaure to be entered a de-
    or44 oonfinaing euoh aale and order    the report
    of 44l4 to be recorded by the Clsrk and the
    proper con~8yen08 of the property sold to be
    made by the gu%rdlan to the puroha44r, upon corn-
    plianoe by auoh puxwh+ser vlth the temm of
    sale, provided, hovever, that Uh8M the 4f&28Of
    auoh real 44t&8'%4 &a       to the owner or holder
    of a aeoursd alair againat the estate 'aadthe
    4am4 la of tha real estate 44ourS.ng snob olaia
    and la In full payment, liquidation, and aatis-
    faction thereof, only the uDount of .caab,if any,
    actually recieivedby auoh gUaX'di+~in 4X486% Of
Honorable I,.C. Bosv822, Page 4


      th8 cuPOuutll408448l'y   t0 pay, 2iqtidet9 and
      gatisfy such 02aim in full, shall b8 oon-
      aldered, together vlth the other property of
      the estate, 3.npassing upon the surrioien0y
      of such bond, Th4 provlelons of this Act shall
      be mandatory and unlese the Court eball Slrat
      d%t%m.he     that the guardl~~a bond 1s adequate
      and solvent, as 8boYa set forth, as evidenoed
      by an order tie and entered by the Court to
      that %ff%Ct, any sale of real eatate hereafter
      made mder the provirions OS this Title shall
      be void; provided, that the provlalonr hereof
      ahall not apply to 08881) pending at the time
      this lav become4 effective . . . .'
                                      .*
             Prior to the enactment of House Bill Ho. 482, aupra,    .
the App82lafe Courta Of this Stat8 haY8 rendered many opfn-
ions oonstrulngArticlea 4202 and 4226. However, many of
these qasea do not pa44 upon the qU84tiOI.I   Under consideration;
moat of them are oau4ea in which the attack on the judgkent
of the Probsts Court was made oo2laterally,and, Sollowlng
the well-known     ~28, tines4authorities hold that the Probate
Court is 8 oourt of gene*2 jurisdiction,and that Its judg-
ments are pwsumed to have been properly rendered on suffl-
clent facts and are not subject to oollatera2 attacks. HOY-
%Yer, it vas held in American Indwanlty Company va. Robe1
(Texaa Conrmieslonor Appeals) 235 s.w. 867# that Article 4201,
prior   t0 its aZ?M&dent,   rSqUired  a  lndepend%nt and 48p8r8t%
bond S'rm that given a4 a quallSlcation of the guardi,an.      It
will be noted that Article 4201, supra, as amended by liouse
Bill 482, aupra, requires the guardian to file a good and
4urricientbond in in amount equal to tvica the saount for
vhich the real estate is sold. (Al40 see the case City of
Tyler V8.~FirSt     Rational Sank of Beaumont, et al, 46 S.W.
(26) 454).
          After carsfully considering Bouae Bill 482 and the
foregoing authorities, it is our opinion that it Is necessary
for the guardian to file 8 speolal sales bocd in double the
amount for vhloh the real estate is sold. In other words a
speolal sale bond must be filed in oaaplianoe vith said House
HonorebleL. 0.   Bo~vell,   Page 4


Bill&    re&wdleas of the aamunt of th6 generalbond QII
file vhen reel estate 18 rold by the gumdlan.
