                 HE     A       OR~'EY         GENERAL
                              OFTEXAS




Hon.  J. D. Looney
Countg.AudiFor
Boston,  Texas

Dear Sir:                        Opinion No. C-5704     “’
                                 Re:   Whether conversion  into ca’kh of U-S;
                                       Government bond’5 owned by an estate&
                                       gives rise to “actual   cash receipts
                                       upon which the county judige would
                                       be entitled  to 8 commissfon  of tine-
                                       half of one per cent under Article
                                       3926, R.C.S.
               Your letter or MaPch 31, 1944, requesting    the opinion
of this     department upon the above stated question    Peaas as
follows:

                  “Since receipt     of your Opinion No. O-5654, dated
       November 8, 1943, written           by Mr. J. Arthur Sandlfn,
       ana approved by you as First            Astilstant   Attorney    Gen-
       eral,    construing     Art.  3926   RCS   as  applied   to  the  facts
       submitted      by me relative      to commissions      of County
       Judge on liquiaa,ting        alvlaenas     in the amount of
       $255;659.80      as reported     by Mrs 0 Helen Seeger,       Aamin-
       istratrlx      of the Estate of W, J. Buchanan, Deceased,
       .9 further     questfon   has arisen     with respect     to the
       sppllcabillty       of the County Judge’s         commissions    under
       Art 0 3926,to       U, S. Government Bon& .whfch were sold
       bg the Adminlstratrix         in order to pay Federal         Estate
       taxes and Texas Inherftanoe            taxes,

                 “The AdminfstPatrix    sold U.S. Government Bonds
       to the amount of $3,136,06g.‘J.4      in order to raise mocey
       tb help pay Federal     Estate taxes and Texas Inherftance
       taxes Q These bonds were sold without getting            an order
       of the Court, but are Pepopted, in Exhibit          B of the
       fPrst’ annual accounting      of the Aclmfnistratrfx    undar
       Capital Receipts    along with seven other Items of cash
       receipts.     A copy of Exhibit     B fs aMached     hereto.

               ~“Counsel for the Administratrix    now contends
       that cash receipts    from the sale of these bonds is not
       subject   to one-half   of one per cent conrmission for tka
       County Judge un&er Apt. 3926 RCS because      said bon& were
Hon. J. D. Looney,         page 2             o-5704


       bold for the purpose of ralslng    money to help pay taxes,
       and further because counsel   claims  the U.S. Goternmtint
       held a lien on said bonds for the payment of said taxes.

                “You,.*’opinion    No, 0-5654, as above referred     to,
       is  a very comprehensive        one; and under this oplnlon     it
       is my contention       and. also. that. of the County Judge that
       said commission      is appllcable’to     cash receipts realized
       from the sale of these bonds as set pouterabove, regard-
       less of whether they were sold to pay taxes or whether
       OP not the U. S, Government had a lien on them for the
       payment of taxes,

                “The County Judge’s      cominlsslon  has already      been
       paid by the Admlnlstratrix~on         all Items showiildiaer
       Capital Receipts      an&Income    Receipts   of~‘the’attached      copy
       of Exhlblt     B of the aforementioned      annual accOunt,      with
       the exception      of the item checkea in red, which 1s the’
       lt.em of cash received      from the sale of Governmerit bonds
       for the purpose of paying taxes e The- Cbunty Jiidge has
       withheid    his commission     on this Item awaltlng       a further
       opinion   from you as to the applicablllty          of this com-
       mission L

               “I shall appreciate    it very much If you will
       glve me your further   opinion   as to whether or nbt one-
       half of one per cent commlssion      can legally be assessed
       by the Gounty Judge on the Item under Capital      Receipts
       of PBonils sold to pay taxes In the amount of $3,136,069.14.‘,”

              The commissions   allowed  the county judge under Arti-
cle 3926 are upon ~“the actual      cash receipts’ of each executor,’
&dminlstrator,    or guardfan,   upon the approval    of the exhibits,
and. the fln.al settlement    of the account    e . D .’

             It Is well settled      that cash on hand or in the bank
at the death of the testator        1s not “actual      cash receipts”    wlth-
in the rnearilng of ‘the a’bove statute,       and no CommlssiOn     accrues
thereon   In favor of the county judge,           25 Tex. Jur. 260; Wlllls
V- Harvey, 26 S .W. (2a) 288, error refused a In our opinion                No.
o-5654, written    in ar>swer to an earlier        inquiry    from you, we
held that “#hen, in the course of an aamlnfstratlon,               part of the
corpus of tne estate     1s converted      into cash, the county judge
1s entitled    to 8 commfaslon on the amount of such cash.”              The
answer to your present     inquiry,     therefore,     turns upon~‘the ques-
tlon of whether U.S. Government bonds owned. by an estate               repre-
sent “cash on hand” prlor      to their     conversion     into money.
                   Our opicion No, 0-5654 held in effect        that   corporate
dook        ala   not become “cash” until Its converslon        Into   money.
Hon, J. D. Looney,       page 3               O-5704


Although the d,ecisions       are not un.anlmous, we balieve          the weight
of authority     supports   a holding     that U, S. Government bonds
likewise   cannot be considered’ as “cash” until             they are converted
into money O In re KeePs          Estate     2 P. (2a) 806, (N,M,:;”          fin
re Chamberlain’s      Estate,    115 PO f2a       235,  on  second   appeal.,
132 P. (2d) 488 (California         District      Court of Appeal) ; Mann,
7 Am.‘Dec: 416; State V. Darby, 165 SOW. (2d) 419 (MO.);
Neufield   V. U.S.,    1.18F, (2d) 375; Cou,lter v. State,            39 S, W.
576 (Tex. Cr. App.); Simpson v, Goggin, 5 S,W. (2d) 610 (Tex,
Clv. App.)’    (holding    that checks by persons          or corporations
are not “cash”) O See also          Willis    v. Harvey,      supra, aherein      i.t
IS stated:     “It Is ,?ihought the term ‘actual           cash receipts’
should, be held to specifically          describe     monexL. 6 O i”

                We do not regard as persuaslve         the fact that the
U.S. Government had a lien on the bon&,               and that the p”Ar;;;;      of
selling     the bonds was to pay Federal         and State taxes.
exists    in favor of the U. 9 ,, Government on all estates             of
decedents      on which estate     taxes are due, and to hold that this~
avoided the obligation         to pay commissions      would deprive     the
county judge of his commissions            in all exceptional,lg     large
estates D In our opinion          the language of Art, 3926 fails          to
support     such a construC:tfon.       With reference     to the raising     of
the money to pay taxes contention,            we call   attention    to our
opinion    No. 0-811, ,wherein we held that the county judge was
entitled     to his commission       on money borrowed by the executor         to
pays the claims against        the astate.     Further,    in a case wherein
an administrator       carried    on a poea construction       con~tract of a
decedent,      Judge Powell of the Commission of Appeals said:

           ‘ “The court seems to lay napch stress         on the fac,t
     that as soon as the i;our:t,ies paid the administrafor
     for the road work, the iatter       had to pay it out in
     expenses  connected   wi,th tCie oomtrv,ction     of the roa&,
     We do not think the time or manner of its disburz;mznt
     has anythimo       do witpl the fees of the county 3 R
     since he, unlike    execu,tors  and adSfinistrators,     receives
     no compensation,   on disbu:3eme::~ts 6

This decision allowed a commission             ,to ,the judge    on, these   re::a.ip’tis.
Goodwin V. Downs, 280 SOW, 512,

              From the foregoingp      it     follows    that we are of the
opinion   that the sale of ,the eo?lds          represented    t;e conver5 ia::.. of
assets  of the estate    ir..to “ae’-L;zal    cash receipts,       and the coi;s,tg
judge is entit~led to his sta~tuto’ry           commission    thereon,
Hon.   J. D. Looney,     page   4             O-5704


                                      Yours    veri   truly

                                    ATTORNEYGENERALOF TEXAS


                                      By a/Jo    Arthur       SiXndlin
                                              J .” AFC-iur Sanalin
                                              Assistant

JAS:AMM:wc


APPROVEDAPR'22, 1944
s/Gee.   P. Blackburn
(Acting)   ATTORNEYGENERALOF TEXAS

Approved   Opinion     Committee    By s/BWB Chairman
