Mr. Charles J. Lleck, Jr.         Opinion No. W-664
Criminal District Attorney
Courthouse                        Re:   Whether payments from
San Antonio, Texas                      Workmen's Compensation
                                        and Social Security bene-
                                        fits received by a ward,
                                        arising out of the death
                                        of her father, are subject
                                        to the payment of commls-
                                        slons to the County Judge
                                        under the provisions of
                                        Article 3926, Vernon's
Dear Mr. Lleck:                         Civil Statutes.
    We quote from your letter of June 5, 1959:
         "'In an estate of a minor, the Probate
    Clerk has presented a bill of costs which
    includes County Judge's Commission of -3of
    1% on the amount shown as receipts in the
    annual account filed in this estate. This
    fee has been taxed as part of the costs on the
    ward's receipts from Workman's Compensation
    Claim, payable on the death of her father, and
    the ward's interest in Social Security benefits
    by reason of her father's death.
         "'I request an opinion from you on the fol-
    lowing question:
         "'DO the payments from a Workman's Com-
         pensation Claim, payable on the death of
         the father, and the ward's interest In
         Social Security benefits by reason of the
         father's death, represent corpus of the
         estate or income?'"
Mr. Charles J, Lieck, Jr., page 2 (~~-664)


     Section 1 of Article 3926, Vernon's Texas Civil Statutes,
provides as follows:
          "The county   judge shall also receive the
     following fees:
          "1* A commission of one-half of one per
     cent upon the actual cash receipts of each
     executor, administrator or guardian, upon theism
     annroval of the exhibits anr the final settle-
     ment of the account of such executor, adminls-
     trator or guardian, but no more than one such
     commission shall be charged on any amount
     received by any such executor, administrator
     or guardian." (Emphasis ours.)
     In Anderson v. Steddum, 194 S.W. 1132 (Clv. App. 1917,
affirmed by memo opinion, 222 S,W.'lOgO flomm. App. lg?o; It
was held that a nension paid to a ward under the laws of the
United States was not Income to the estate but the corpus of
same, and that, therefore, the guardian could not expend such
moneys for education and maintenance of the ward without an
order of the Probate Court.  The Court stated at page 1134 of
the opinion:
          I, * 0 As appellee owned nothing except
     tbepenaion mney,~.unless that was an estate
     he owned nothing from which an income could
     arise. If it was an 'estate,' and, clearly,
     it was, of course it was not 'income of an
     estate'        for it could not be 'income from
     an estatel'if it was the estate itself. It
     follows, we think that the fund in appellant's
     hand as ,&id'not 'income' of appellee's estate,
     D D D1,
     Later in Goodwin v, Downs, 280 S.W, 512 (Comm. App. 1926)
it was held that the Countv Judne was entitled to a commission
upon money received by an adminrstrator In the fulfillment of
a road construction contract of the deceased. The cash receipts
from the contract were viewed as Income.  It Is important to
note that at the time the administration was taken out the
construction contract had been entered Into by the deceased,
but not performed.   The work was performed and the contract
oompleted at the instance of the administrator after the com-
mencement of the administration.
Mr. Charles J. Lleck, Jr., page 3   &w-664)


        The facts presented by your request are unlike the
situation before the Court in Goodwin v. Downs, supra, be-
cause here the circumstances which gave rise to the claims
materialized prior to the commencement of the guardianship.
In the instant situation the death of the father prior to
the guardianship created a right on the part of the ward
to claim the Workmen's Compensation benefits and the Social
Security benefits. In Goodwin v. Downs, supra, the right
to claim the benefits of the construction contract did not
accrue until the work was performed and the contract com-
pleted during the administration.
        Thereafter, In Willis v. Harvey, 26 S.W.2d 288 (Civ.
APP. 1930, error ref.) a County Judge was denied a commission
on cash on deposit in a bank to the credit of the testatrix
at the time of her death.
        Monthly disability payments from the United States
Veterans' Administration to a veteran for whom a guardian
had been appointed were held in Bagwell v. McCombs, 31 S.W.
2d 835 (1930) to constitute the corpus of the estate. In
the opinion it was stated at page 837:
             If
              . . . While the estate consisted
        entirely of the monthly allowances made
        by the United States government to the
        ward, it was nevertheless the corpus of
        the estate and not income from an estate.
        It is also an estate fromwhich there was
        no income, and any expenditures for the
        benefit of the ward must be made from the
                               Anderson v. Steddum
        ii~~~i~fA~~~)eS~~teS:W.1132."
        In Gilbert v. Hines, 32 S.W. 876 (Clv. App. 1930) a
guardian claimed a commission upon moneys paid to the guardian
by the United States Veterans t Bureau as monthly disability
compensation accruing to the ward over a period of years and
upon moneys paid to the guardian by the United States Veterans'
Bureau under a policy of war risk insurance. The Court held
that the monthly disability paymenta made by the government
were part of the corpus of the ward's estate, citing Dagwell v.
McCombs, supra, and Anderson v. Steddum, supra. The Court
f'urtherheld that the moneys paid to the ward under the policy
of war risk insurance were part of the corpus of the estate,
stating at page 878 of the opinion:
Mr. Charles J. Lieck, Jr., page 4     (w-664   )


            "In the instant case the ward's claim
       for war risk insurance, subsequently enforced
       by appellant as guardian, existed as such claim
       at the time appellant was appointed and quali-
       fied as guardian.      . We think unquestion-
       ably, though a chose in action at the time ap-
       pellant was appointed guardian, the insurance
       claim was a part of the corpus of the ward's
       estate. . . . The word 'estate' includes
       claims that are mere chases in action and are
       alone sufficient warrant for instituting ad-
       m7nistration oroaeedinqs in a probate court.
       fliting ~uthorltie~
              "We, therefore, hold that the claim for
        war risk insurance was a part of the corpus of
        the estate, and, when this claim was later con-
        verted into money and paid to the guardian, Its
        status, as a part of the corpus of the ward's
        estate, was unchanged, and no commissions to
        the guardian could be allowed thereon. Anderson
        V, Steddum (Tex.Civ.App.) 194 S.W. 1132; Bagwell
        v. McCombs, Guardian (Tex.Civ.App.) 31 S.W. (2d)
        835; Freedman v. Vallie (Tex.Civ.App.) 75 S.W.
        322."
        The case of McCrory v. Wichita County, 261 S.W.2d 867
(1953, error ref.) held that moneys received by a guardian and
constituting the ward's share of periodical distributions from
the liquidation of a trust are not "actual cash receipts" with-
in the meaning of Article 3926, Vernon's Texas Civil Statutes,
and that the County Judge was, therefore, not entitled to a
commission on such sums, The decision relied upon Willis v.
Harvey, supra. The following language of the court in the Willis
case was quoted with approval at page 289:
              1,
               0 * 9 It is thought the term 'actual cash
        receipts' should be held to specifically describe
        money received by the executor  other than the cash
        or corpus of the estate which was on hand when the
        testator died, e a ."
        In   the McCrory case it was further stated at page 869:
             "The 'estate first delivered' to appellant
        was the distribution made to her by the trustee.
        a e * As guardian, she could not have claimed a
.   --




         Mr. Charles J. Lieck, Jr., page 5   (WW-664)


                 commission on the estate first delivered.
                      ,I
                       . . .
                      "But if It could be said that the ward's
                 estate 'first delivered' to appellant consisted
                 of ownership in the properties conveyed by the
                 trustor to the trustee, rather than in the share
                 distributed to her by the trustee, the funds
                 distributed would nevertheless be the corpus
                 of the ward's estate. It would be the same estate
                 in a different form, and would be only Once Pe-
                 ceived. Gilbert v. Hines, Director of 0. S.
                 Veterans' Bureau, Tex.Civ. App;, 32 S.W. 2d 876;
                 21 Tex. Jur., P. 352, sec. 95.

                 It was also held in McCrory v. Wichita County, supra,
         that the provisions of the statutes relating to commissions
         to be paid to executors, administrators and guardians are
         indicative of the legislative intent expressed in Article
         3926, Vernon's Texas Civil Statutes, relating to commissions
         to be paid to the County Judge upon actual cash receipts of
         an estate. Hence, the case of Gilbert v. Hines, ~up~a, while
         relating to the commission to which a guardian is entitled
         on an estate of his ward, serves to reflect the lnterpreta-
         tion which should be given to the statute s$lowing County Judges
         commissions upon the actual cash receipts of an estate.
                 In the present situation the ward's interest in the
         Workmen's Compensation claim and her interest in the Social
         Security benefits were in existence at the commencement of
         the guardianship, both claims having arisen from the death
         of her father prior to the guardianship.
                  From the cases cited above, It is abundantly clear
         that since these claims and the money into which they were con-
         verted constitute the estate first received by the pardian,
         they cannot also be income or "actual cash receipts from the
         estate, but must be viewed as the corpus  thereof. Accordingly,
         it is our opinion that these payments from a claim for Workmen's
         Compensation and a claim for Social Security benefits represent
         the corpus  of the ward's estate. They are, therefore, not subject
         to the payment of commissions to the County Judge under the pro-
         visions of Article 3926, Vernon's Texas Civil Statutes.
     Mr. Charles J.'Lieck, Jr., page 6      @w-664)
                    i
‘:
                                                        ___- O-l@,;5
      ""'.~~"Atto??ieyGeneral's Opinions'0-5495 (1943) and   _ ____
     (1939) are hereby overruled to the extent that the;7 are in
     conflict wlth,this opinion.

                             SUMMARY

                   A County Judge is not entitled to
                   a commission under Article 3926,
                   Vernon's Texas Civil Statutes, on
                   moneys received by a guardian as
                   benefits to the ward on a claim for
                   Social Security and a claim for
                   Workmen's Compensation, both such.
                   claims arising from the death of
                   the ward's father prior to the
                   guardianship, because the claims
                   and moneys derived therefrom are
                   part of the corpus of the ward's
                   estate.
                                        Very truly yours,
                                        WILL WILSON
                                        Attorney General of Texas


                                            Henry G. Braswell          I
     HGB:mg:zt                              Assistant


     APPROVED:
     OPINION COMMITTEE
     Geo. P. Blackburn, Chairman
     William E. Allen
     Elmer McVey
     C. Dean Davis
     Marvin H. Brown, Jr.
     REVIEWED FOR THE ATTORNEY GENERAL
     BY: W. V. Geppert
