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                                                                                   R-110




        Hon. Jesse James                               Opinion No. V-52
        State Treasurer
        Austin, Texas                                  Re:     .What steps should be taken
                                                                by the beneficiaries  under
                                                                the will of Ada Shaw Wright
                                                                in ettempting to collect
                                                                money which has now been
                                                                paid into the General Reve-
                                                                nue Fund?

        Dear Sir:          :

                    Your letter       of Feb.   10, 1947,    reads   as follows:

                    “I enclose    herein    the following      documents:

                    “1.   Affidavit    of Grv’ille Gri,f,fin Shaw
                     2.   Affidavit    of LeUa M. Shnw CaIbraith
                     3.   Certified    copy of the will of Ada S. Wright,
                          beceased

                  “For your information,  $458.25  was received  by
             this department on May 13, 1939, and our records   $how
             the amount was credited at that time to General Reve-
             nue and a record of the deposit kept in our Escheated
             Estates File.

                   “&cording    to ,the will, thi.s money was left te two
             heirs, -’ ane of which was th,e Mother, now deceased,          of
             the two claimants,      G;Brt,i:fied copy of the,ir l-&tkaet’s witi
             has not been fu.rni,shea me.

                  “Please  advise me what actton I should wrire th,e,$s
             people to take in order to cdilect &sir share of the
             above amount.”

                    With your letter you enclose a Fortified copy of the will of
        Ida Shaw Wright, from the probate lq$&@S         of Chyson    CoVntp, Tex-
        as,   You ,have also furnished tu ua a ao$%y of the order of the Probate
        Court of Grayson County entered on &C 7th day of March,, 1939, ap-
        proving the final account of J. R, Hai%&, EXeCUtor      of the estate of
        Ada S, Wright, and closing the estate,      ‘This order conforms to the
        piovision,s   of Art. 3644, V.A,.C.S., which reads in part as follows:
                                                                                  - , \

Hon. Jesse James,    page 2                             Opinion No. V-52



           “Upon the settlement of the final account of any
     executor or administrator,   if the heirs, devisees    or
     legatees of the estate, or assignees,   or any of them,
     do not appear or are not represented     in the court,
     and there are any funds of such estate remaining in
     the hands of the executor or administrator,     the coun-
     ty judge shall enter an order upon the minutes requir-
     ing such executor or administrator    to pay such funds
     to the State Treasurer.”

          It is obsarved that this money, $458.25,        was received by
the Treasury    Department    on May 13, 1939, and as reflected by your
records was deposited to the credit of the General Fund.            This mon-
ey was erroneoubly     placed in the General Fund, for it is clear that
the purpose of the enactment, of Articles      3644-3660,    V.R.C.S.,   under
which the money was received by the State Treasurer,            is that the
Treasurer    shall keep a record of such fund, and be prepared to pay
claimants   the amount due them when the law has been complied with,
and does not contemplate     that such funds be placed in the General
Revenue Fund. In other words, as said by Judge Sharp in the case of
Manion v. Lockhart,     State Treasurer,    (Supreme Court of Texas) 114
S. W, 216, the State Treasurer      becomes merely the custodian or trus-
tee of the fund by virtue of the articles    of the statute.   This opinion
was rendered March 16, 1938,, more than a year prior to this deposit,
and should have been followed.       In this case fudge Sharp clearly con-
strues Articles    3644 to 3660, V.R.C.S.,    and Imoints out explicitly the
steps to be taken to collect such funds from the Treasurer.            They may
be briefly summarized      as follows:

           (1) Claimant to the fund shall institute suit therefor, by pe-
tition filed in the county court of the county in which the estate was
administered,    against the State Treasurer,   setting forth claimant’s
right to such funds, and the amount claimed.       (Art. 3653);

           (2) The proceeding     shall be governed by the rules for other
civil suits, and if judgment is for claimant, a certified copy of such
judgment constitutes    sufficient authority for the Treasurer   to pay the
amount for which judgment is rendered.

          It is apparent that the claimants to the fund here in question
have not up to now pursued the statutory remedy to recover the same,
and until this is done you are without authority to pay over these
funds to claimants.

          It does not follow, however, that claimants   are without a
remedy.    The facts in the Manion v. Lockhart case,, supra, are iden-
tical with the situation here, except that in that case the claimants
pursued the further provisions   of the statute and reduced his claim
to judgment, just as the claimant will have to do in this instance,
,   .-


         Hon. Jesse James,    page 3                             Opinion No. V-52




         before being entitled to payment.     After this has been done, Judge
         Sharp points out, the only remedies     available to claimants under
         such circumstances    in the following language:

                    “It is undisputed that relator has fully complied
              with the law and is entitled to be paid the sum of
              money claimed by him. It is not shown, however,
              that relator cannot obtain the money due him by an-
              other complete and adequate remedy.       While it is
              true that the money due relator has been placed in
              the general revenue fund, the Legislature     has not
              refused to make a specific appropriation     to pay re-
              lator’s demand therefor.     Besides, he has an ade-
              quate remedy by an ordinary suit. . . ,”

                   In other words after claimants have legally established
         their rights to the funds in question pursuant to the provisions    of
         Articles  3644 to 3660, V.R.C.S.,   they are then in a position to ask
         the Legislature   to make a specific appropriation   to pay their
         claim, which cannot in any event be paid otherwise,      since the
         money is now in the General Fund and cannot be withdrawn ex-
         cept by a ,specific appropriation  to that end.

                   We believe the foregoing is sufficient to enable you to
         advise these claimants   of their rights in the premises, and the
         necessary  prerequisites   to be followed.

                    It is not to be understood that we are passing upon the
         merits of these claims.      That is a matter that can be determined
         only by judicial proceedings,     as provided for in Articles 3644 to
         3660,” V,.R,C.S.,   supra.

                                        SUMMARY

                   Claimants to money deposited with the Treasurer
             pursuant to the provisions      of Articles   3644 to 3660,
             V.R,CIS,,    by executors   or administrators     of estates
             because they are unable to locate the heirs or bene-
             ficiaries   entitled to receive the same may be paid out
             by the State Treasurer      only in accord with the provi-
             sions of said articles    of the statute, and if the money
             has been erroneously      deposited in the Gaineral Fund,
             it may then be withdrawn only bp an appropriation            by
             the Legislature,     and then only after it has been judi-
             cially determined     who are the rightful owners of said
             funds.    Such funds should not be taken into the treas-
             ury as state funds and cre,dited to the General Fund,
             but should be held by the Treasurer         as c,ustodion for
             the benefit of the rightful owners, and then when such
     Hon. Jesse James,   page 4                         Opinion No. V-52




         owners have been j~Ueially   determined  axid a certi-
         fied capy of the ju&gment furnished to the State Treas-
         urer, he is axklwriaed t6 pry cut the same without any
         appropziurtion.

                                          Yours   way   truly,

                                   ATTORb%YGE&ERALOF               TEXAS




                                                             L. P. Lollar
                                                                Asaiirtant

     LPL:AMM:   al

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