Honorable 0. J. S. Ellingson
General Manager
Texas Prison System
Huntsville, Texas
Dear Sir:                 Opinion No. O-2654
                          Re:  Does the Texas Prison Sgst,em
                               have a right to send the $50.1X
                               due the mentioned inmate to some
                               relative or place it In the es-
                               cheat fund?
       This is to acknowledge receipt of your request for our
o inion regarding the disposition to be made of fifty dollars
         represented by a check issued under the following cir-
c?iXiies :
       Herbert A, Campbell (TPS#q1108, deceased) was released
from your institution on August 7, 1940, after having completed
his sentence and after having actually served more than one
 ear. This entitled the convict to receive fifty dollars
9$50,00) in money as provided by Article 61662-1, Vernon's An-
notated Civil Statutes. He was taken into custody by the of-
ficers of the Federal government to serve time in the United
States penitentiary at Leavenworth, Kansas. On August 10, 1940,
the prisoner died. Upon his admission to the Federal prison,
he had in his possession a check for the fifty dollars ($50.00);
upon his death no provision had been made for the aisposltlon
of this property and the convict had never endorsed the check.
You ask whether you have a right to send the fifty dollars
($50.00) due the former inmate to some relative, or place it
in the Escheat fund.
       A check is a written order, executory in nature,'and
may be revoked by the drawer at any time before it is p&id or
                                                      - ,_-,-
in some manner accepted by the bank on which it is drawn. Hall
v. First National Bank, (Civ, App.) 252 S-W, 828; State v. Tyler
County State,Bank (Corn.App,) 277 S.W. 625, 42 A. L. R. 1347;
6 Tex. Jur. 604, It is an acknowledgment of an indebtedness of
a certain sum of money to a person named therein, to his order
or bearer, payable instantly on demand. Middle-Kauff v. State
Banking Board, 111 Tex. 561, 242 S,W. 442; First Natlonal Bank
v. Greenville National Bank, 84 Tex. 40, 19 S.W, 334. A check
1s not money, although it is considered personal property.
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Honorable 0. J. S. Ellingson, page 2          o-2654


Lieske v. State, 60 Tex* Cr. R. 276,   131 S.W. 1126; Lancaster
v. State, 9 Tex, Cr. App. 393.
       If a person dies intestate his property passes under-
the provisions of Title 48, Revised Civil Statutes of Texas,
Articles 2570-2583 inclusive, The various statutes are calcu-
lated to cover every contingency and prescribe the inheritance
to every degree of relationship, so If your former inmate has
any surviving kin, the fifty dollars ($50.00) mentioned belongs
to such relatives in accordance therewith.
       If there be no will it is the province of the probate
court to determine whether or not a necessity exists for admin-~
istration. Should such necessity exist, of course the adminis-
trator would be the proper person to pay the money here invol-
ved, on satisfactory proof of the administration. Articles      ~-
3332~;3356, 3370, Revised Civil Statutes, 1925; Simpklns, Admln-
lstration of Estates, 3rd Ed., p. 73.  If it is made clear
that such administration is unnecessary, payment should be made
to the proper person or persons entitled to the same under the
statutes referred to above governing descent and di~&tzibutlon.
For your protection, however, it will be advisable-that such
status be established to your satisfaction.
       If the decedent left a will, the duly appointed and
qualified executor should be.the recipient of the fiftg.d.oL-
lars ($50.00). ,Artlcle.3429, Revised.Clvil Statutes, 1925;
Jones vi Lee, 86 Tex. 25, 22 S.W. 386; 1092. Under thenstat-
ute, a will may be presented for probate within four years
without proof that the party applying for such probate wasnot
in default In falling to present the same within that time.
Article 3326, Revised Civil Statutes, 1925; Simpkins, Adminis-
tration of Estates, 3rd Ed., p. 79.
       Title 53, Revised Civil Statutes of Texas is applicable
tomescheat proceedings. Article 3272, Revised Civil Statutes
reads in part:
       "If any person die seized of any real estate
    or possessed of any personal e&ate without any
    devise thereof, and having no heirs, OP where the
    owner of any real OP personal estate shall be ab-
    sent for the term of seven years, and Is not known
    to exist, leaving no heirs, OP devisee of his es-
    tate, such estate shall escheat to and Vest in the
    State."
       Other articles of said title prescribe the requisites of
petition for escheat, citation, issue and trial~and other mat-
ters incidental thereto, (See Articles 3273, 3274, 3278, Revised
Honorable O.J. S. Ellingson, page 3         0 -2654


Civil Statutes.) We shall not here elaborate upon the applica-
tion of these statutes, but content ourselves with the follow-
ing quotation from the opinion of Justice Sharp of the Supreme
Court in the recent case of Manion v. Lockhart.
                                              . 131
                                                 - Tex. 175.
                                                          ._I
114 S.W. (2d) 216:
       "The object of the escheat statutes is to
    vest title to the property escheated in the
    state, and they provide a method for its recov-
    cry. They also provide that any claimant of the
    property may within a certain period file suit
    in the district court of Travis County against
    the state for such property, or money so escheated,
    and fix a maximum period of time for such suit."
       Under the state of facts as presented by you and the law
as outlined above, we would advise that you hold the check or
money it represents until such time as claim be made therefor,
at which time, upon your request accompanied by an explanation
of the facts then controlling, we shall be happy to give you
our opinion relative thereto.
                              ,Yoursvery truly
                           ATTORNEY GENERAL OF TEXAS

                              By s/Benjamin Woodall
                                   BenjardinWoodall
                                   Assistant

BW:ew:wc
APPROVED AUG 31, 1940
s/Grover Sellers
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinion Committee By s/BWB Chairman
