-   -

                                                                             R-821



              ‘THEATTORNEY                      GENERAL
                               OFTEXAS




        Hen. Ben J. Dew                opirdon RO.   v-398
        Dlrtrtot  Atto+‘nq
        Steplwas County,               10:   sbee, of a county Judge
        Brebkenrl~e,    Texas                wh ean ldmlilitr oa fto r
                                             a nesta brig,
                                                        te probate.6
                                             o r r hUnited,
                                                      er    th e Qoa v-
                                             0r nB aB oltnds.’


                     Your    request ror     an oplnloa iroB    this      offloe
        on the above eubjeot matter 1s in part as follor~i
                    “3x1 the light of the forego      authorl-
              ties  and opinions of the Attorhey“zr enoral,
              please advlee whether or not the County Judge
              of Young county, lo entitled, to oolleot   one-
              half of one per cent fees vhere.the    Admini13-
              trator of an estate in that County has oeshed
              Uaited State8 Qkernrent     E bonds and United
              States Qovernment ff Bonds belonging to such
              eatate ao admInistered in the probate court.”
                     We quote the following        pertinent    statutory       pro-
        vlslonst
                     “Art.    3926.
                     “The county judge s&ill        also   receive     the
              following   fees:
                      “1 . A commlsslon of one-half of one per
               cent upon the aotual oaah reoeipts       of each
              executor,    edninistrrtor    or guardian, upon the
              approval of the exhibits       end the final settle-
              ,rent of the account of such executor,        rmnis-
               trator or guardian, but no more thsn one such
               oorrission   shall be charged on any mount re-
               ceived by any yh       executor,  adainlatrator    or
              guardian.    . . .
                     “ht.     3689.
                     “Executors       end admlniatrators     shall   be
Hon. Ben J . Dean - Page 2       (V-398)



     entitled  to receive and may retain in their
     hands five per cent on 811 sums they may
     actually receive in cash, and the same per
     cent on all sums they may pay out in cash
     in the course of their administration.”
           “Art.     3690.

            “A commlseion shall not be allowed or
     received    for reoelvlng    my cash which was
     on hand at the time of the death of the
     tertator    or intestate,    nor a oommiaslon for
     receiving    money,realized    from the sale of
     property to satisfy       debts against the pro-
     perty and the paying out of the proceeds in
     satisfaction    of the debt exoept as to the
     amount realized     from the sale In excess of
     the debt, nor for paying out money ,to the
     heirs or legatees as such,         Provided, how-
     sver, that if the administrator         or executor
     shows to the court that the value of the
     servloe rendered the estate in making e sale
     of property seourlng a debt exceeds the a-
     mount of the commission oaloulated as above
     provided,    then the court shall allow a com-
     mission for a just amouut. The amount not
     to exceed that now allowed by law.”
             In construing the above quoted statutory      ro-
visions,   it was held In Willis v. Harvey, 26 3. W. Ip24
288, vrit refused,     that there is no difference   in the
meaning of the terms “actually      received in oash” CLSused
in Article    3689 and “actual cash receipts”    as used In
Article   3926. It was further    held that the ‘receipts”
did not embrace cash on deposit in the bank at the death
of the testator.
            ,It was held in Terrlll v. Terrlll,  189 3. W. (26)     -
877, writ refused,    that Postal Savings Stamps owned by
testatrix   at the time of her death should be classified    as
“cash on hand” within the meaning ,of Article    3690 Instead
of “sums actually reoeived    In cashl’ within the meaning of
Article   3689. We quote the following    from the Terrill  case:
           “It     seems that the executor
                                       did not claim
     a commission upon the $600 in his   itemized re-
     port to the legatees of the estate.     The county
     Court held, however, that he was entitled     to re-
     tain five per oent of sald~amount.     In this
Hon. Ben J . Dean - Page 3    (v-398)


     holding the Court erred.    This $600 was in
     the form of Savings Stamps, United States
     Post Office,   which were purchased by de-
     cedent and held by her at the time of her
     death.   These stamps were an obligation   of
     the United States Government, payable upon
     demand. The executor did not sell these
     stamps but cashed them. He merely exchanged
     one form of a government obligation    for an-
     other.   We think this $600 in Savings Staraps
     Is properly classified   as cash on hand at
     the time of the death of the testatrlx    with-
     in the meaning of Article   3690, Vernon’s Ann.
     Olv. Stats .I’
           Following the reasoning In the Terrlll      oase,
it Is our opinion that when the Administrator      of an ea-
tate oashes United States Government Bonds, he merely
exchanges one form of a government obligation      for an-
other.   Therefore,  such sums should bB classif,led    as
cash on hand at the time of the death of the testator,
and the county judge Is not entitled   to any fees under
Article 3926 on said sum.
           Attorney General’s Opinion No. o-5704, which
was written prior to the holding of Terrill   v. Terrill Is
hereby overruled.
                             SUMMARY
            A County Judge Is not entitled    to fees
     or commissions under Article      3926 when the
     Administrator      of an estate being probated
     cashes United States Government Bonds. Ter-
     rill   v. Terrlll,    189 S. W (26) 877, writ re-
     fused.
                                        Yours very truly

APPROVED:                         ATTORNEY
                                         GENERALOF TEXAS
              .


 FIR   ASSISTANT
“ATT
 ;1-& RNRYGENRRAL
                                        Assistant
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