                    TEEAYTORNEYGENERAI.

                                      OF   TEXAS
                                    Ausm     11. T-a

   FVILL   WILSON
AlTo-         OENERAI.
                                      June 10,      1961


    Honorable  Durney Walker                  Opinion        No. ~14-1076
    District  Attorney
    Mc,Lennan County                          Re:      What constitutes   “actual
    Waco, Texas                                        cash receipts”   as such
                                                       term is used in Article
    Dear Mr. Walker:                                   3926,  v,c.s.?

             You have requested    an opinion   from this department on
    the construction    of Article   3926,  V.C.S.    You state, “the
    question   to be resolved    is determining    the scope and definition
    of 'actual cash receipts.‘”

             Article     3926,   V.C.S.,   provides        in part   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 the approval      of the exhi-
                 bits and the final      settlement    of the account
                 of such executor,      administrator    or guardian,
                 but no more than one such commission          shall
                 be’charged    on any amount received      by any
                 such executor,     administrator     or guardian.”
                 (Emphasis added).

             You have     cited several     cases      which   we will    discuss   in
    connection   with     this opinion.

             In the case of Lyles v. Oheim, 138 Tex. 333, 159 S.W.2d
    102 (19&2),    the question    before    the court was whether the commis-
    sions to be paid a County Judge under Article             3926,   on the receipts
    of an estate,     were to be paid to the County Judge who,made the
    orders and approved the proceedings            for the sale of the property
    belonging   to the estate,     and who was in office        when such estate
    and its administrator      received     the receipts    derived   from such
    sales,   or whether such commissions          were to be paid to the County
    Judge who later      acted upon the annual account        filed   by the adminis-
    trator   of such estate.      The point was not raised         as to what consti-
    tutes “actual     cash receipts”,      but the commission      was paid on the
    full   amount of receipts     received     from the sale of the corpus of
    the estate    and it seems that both parties          to the suit as well as
    the court agreed that this was the proper amount of commissions
    to be paid.
Honorable    Burney   Walker,    Page 2           (Opinion    No. ~~-1076)



          The term “receipts”     does not embrace cash on deposit    in
the bank at the death of the testator.          The term “actual  cash
receipts”     should be held to specifically     describe money re-
ceived    by the executor    other than the cash or corpus of the
estate    which was on hand when the testator      died.  WilliS v.
Harvey, 26 S.W.2d 288 (Civ.App.        1930, error ref.)

          In the case of Goodwin v. Downs, 280 S.W, 512 (Tex.
Sup. 1926),     the Court held that the County Judge was entitled
to a commission     on actual    cash receipts   received    by the adminis-
trator    while completing    the road construction      contracts  of the
decedent;     and that the time and manner of distribution         thereof
did not affect     his fees,    since he received    no commission    on
disbursements.

         In McCrory v. Wichita County, 261 S.W.2d 867 (Civ.App.
1953, error ref.),     the Court said in effect            that the County
Judge is not entitled      to commissions       on the “estate        first
delivered”
  _       ,     and when  the. ward’s    sole   interest
                                                      _       in. the   corpus
of tne SState     was tne rignt   to reCeiVe       a Ulstributive        share
of the funds upon liquidation,         the “estate       first    delivered”
to the guardian was the distribution            made to her by the
trustee     and the amount so received        was not “actual        cash receipts”
but was the corpus of the estate.             If this distribution          had
been in the form of property        other than money and the property
had been sold after      coming into the hands of the guardian then
the proceeds     would have been “actual        cash receipts”        and would
have been subject     to the commission.

         It is our opinion    that “actual     cash receipts”      as used
in Article    3926, V,C,S.,    does not mean the receiving         of the
corpus of the estate     by the executor,      administrator      or guardian,
which includes     both real and personal      property    (including    cash),
but only means cash received       from the sale of the corpus of the
estate,    or a part thereof,    and all moneys received         during the
course   of the administration     from rentals,     royalties     and other
revenue derived     from the estate    received.

                                SUMMARY

                 Actual cash receipts     as used in Article
             3926, v.c.s.,   means  cash   received   during
             the course of the administration       from the
             sale of the corpus of the estate,        or a
             part thereof   and rents,    royalties   and
             other revenue derived     from the estate     and
             does not include   the corpus of the estate
Honorable   Burney   Walker,   Page 3     (Opinion     No. w-1.076)



            received  by the executor, administrator
            or guardian,  whether same consists   of
            real or personal  property (including
            cash).

                                        Yours   very   truly,

                                        WILL WILSON
                                        Attorney General        of   Texas




                                            J. H. Broadhurst
                                            Assistant  Attorney         General



APPROVED:

OPINION COMMITTEE:
W. V. Geppert, Chairman

Sam Wilson
Martin DeStefano
Ray Loftin
Jerry Roberts

REVIEWEDFOR THE ATTORNEYGENERAL
By:  Morgan Nesbitt
