Untitled Texas Attorney General Opinion ( 1939 )

OFFICE OF THE AlTORNN GENERAL OF TEXAS
AUSTIN
Eon.&yneIalbYr8
countyiwitor
c4 *=m
80, n, 0. E. 1911, r8aes 88 follcnmr
1 be allawed the county judge
of one per otmtupon
of rwoh am~cttim, ad-
Y upon the approyal
Hon. Wayne Iefevw, Page 2
Article 3850, supra, was.bro~ht lorward,ln
the Revised Civil Statutes of 1925 in Artlole 3926, whioh
reads in part a8 followsr
"The oounty judge shall also reoelve the
following Sees:
"1. d oom``laelon or one-half OS one per
oent upon the eotual oaeh reaelpta of eaoh
exeaubor, administrator or guardian, upon the
approval ol the 'exhlblhe end the rinal settle-
ment of the aooouut of suah exeo'utor, adminia-
trator or guardian, but no uore than one suah
oomlselon shall be ohargecl,on any emouut m-
osived by any suah exeautor, administrator or
guardian,"
We quote from the ease of Oriae vs. Coolep, et
170 6W 1088, as follows!
"When are the aomiasiona pmvlUsQ tar
by Artlole 3250 (mm Art. 39261 payable') ft
is the oontention o? appellant.that thay a+
not payable until the guartlian'e final aooount
Is approved., Appelleee oontend that they a*
payable upon all oaah reaeipte shown by any
annuati~eoount OS the guarilhn, wheti euah dooount
Is approved by the jutl e to whcm It Is presslit-
ed. Omitting r0=at f er5,the artlole provide19
that the aounty judge, in addition to other
apecliied fees, shall %I allowed .*.., ~'o~QI-
mission of one-half of 1 er sent. upon the ao-
teal cash reoeipta of eaog i..,. guardian upon
the approval of the exhchibfta and the f&l
settlement of the aooount of suoh . . . . guaMIan,*
provided only one suoh oharge shall be made.
Prooeaalng on the theory that the faglalature,~
when It enaotod that euoh ices should bk'pald
*upon' the approvnl of the exhiblfs'and the'
rlnaz settlement of the aaoount' of the guar-
dian, intended that full rorae and efffsot should
Eon. Weyne Lefevre, Page 3
be given to both pmvislone, we oonolude
that suoh ommlrrdons may be payable upon
approval of the annual eocount or upon
approval of the final eaoount, depending
upon when the ~rdIan resolved the money
upon whIoh the ocnnmIee.ion Ie.sou@t to be
ool?ected. For illustration, it;upoti
presentation of an annual aooount It
discloses that oaeh has been reae i ved by
t:-!e tpuxrdian p~rlorto such preaentatfon .
and subsequent to any last annual aooount,
such guardianwould be en%Itl+d to the
speolfIed ooErmlssfona upon the approval
of the acoount 80 preeented. On the other
hand, if it appears fz~m the guardlan*s.
f’inal acoount that slnae his last annual
aooount further cash hae been received,
he would be entitled to his oommlaslon
thereon upon the approve1 of suah final
aaaount . The reierende to the approval
OS the guardian18 exhibits and the approval
0r Ns final eooount we regard ue merely
rixinC:the period or time when~the county
.judge may tax hls owimlsslons. By Article
4186, R. E. 1911, guardlane are required
to present an annual aoaount’under oath
showing, amory; other thinKs, ‘a ocmplete
aooount of reoelpts end disbursements
olnoe the last annual eooount.’ .Upon pr?-
eentatlon of suoh annual account, It Is
by subsequent provIsIons of the statutes
made the duty of the then presiding county
judge to oonduat a hearing thereon, and,
Ii he is satisfied that/the aooount le
oorreot, it is his duty to approve -s=e.
Ravbq made It the duty of tho.oounty
judr~e to approve such eooounta, and ha*-
I= allowi$ a fee of one-h&! Of 1 per
oent. upon the ‘eatual oaeh reoeipts
shown thereby, It surely follows, It Seerae
to us, that the oommisaiona are payable
upon ouoh appaoval, for the reason that
Eon. !‘&ayneLerevre, bee 4
they were clearly Intended for the~beneflt
of the c?rrlcer psrromlng the duty, and,
having been so Intended, It was never oon-
tonplated that he should forego hls cc%-
pensatlm until final settlenmt-a%:$hF es-
tate, particularly when final settlemit
nIQht not oonm until artier the lapse of
$.nfn~ars and the possible death of the
WJ do not, as lndloated, thlnk.
the ref&enoe to flnal settlesent at ellsman-
ln@ess. It Is very pmbebly tbst In many
2uardlanshlp ~roceedln~s oash would be re-
oaived by tho ~uaMlan In the .perIod in-
tervening between his last annual aooouut
and the flnal account. If such oash was
received, the oounty judge who hedtmd
approved such final aooount would; be .on-
titled to the comlsslon thereon, and the
8010 pwpos~, in 0~s opinion, for say rate*
en06 to final settleaent, was to aeoure
the osf loer In ths peymmt of the Yees aa-
crulng at that time and whloh oould not
be done under the ~rovlalon covering anuual
accounts.
"'We have treated the word *exhibits',
in article J&50, as referring to annual
aooounts. Wile It may not be said that the
exhibit, either literalLy or in legal oontem-
pletlon, meens account, It Is well knm that
aooounts are often attached to plsadlngs es
exhlblts. Such oustom, taken In oonnection with
the reference In the ssns,atiIole to oash pe-
aeipts rsqulred.to be shovs.ln snuual aocounta
by article 4106, l?. 8. 1911, and the further
faot that the annual aaoouuts required Oi
&her fidualarles are referred to ns snnual
exhibits (articles 324., 3242, R. 2. 19.911)
sue in our'oplnlon sufflclent basis for hold-
ing that anmal accounts were Intended."
Artlolfe3320 and 3321, R. C. S. read as fol-
low3 :
"h-t. 3320. Exeoutors end adminietra-
tort? shall ma& annual exhibits under oath,
fully nhowlnq the ccndltlon or the estate;
they shall n&n final settlement of the eu-
tatea they represent.rithin three years from
the 3-t of letters, unless the tfms be extended
by the oourt after satlsfaotory showing laeda
under oath; and, upon fatiure in either 0888,
shall be removed as provided by law.
"Art. 3321. Any exhibit made by qn ere-
outor or administrator showing a list of
olaims allowed and approved or established
a&nst the estate he represents, or ehavt@g
the condition-of said estate and an aooount
of all money received ati paid out on aoootmt
of 8atd eatate, returned to the oourt betore
the liliyr of the aocount for final*eettle-
ment, 5hal.l be filed with the clerk, and
notioe of muoh filw shall be posted at
the oourthouse door tcr ten days from the
postin& after whloh the onurt shall examine.
aald exhibit, and if correct, render judqent
of approval thereon and order it to be reoord-
ed."
In vim of the foregoing authorities, you are
respectfully advised that it.ia the oplnion.of this de-
partment thst the one-half of one per cent oommlst3ion
iron the reoelpts of properties handled bye an adminis-
trator is paya!:le to the county judge upon the aubmlsslon
of exhibits and the annual report and that auoh oommlesfon
is not payable at the time of the sales “of the property.
TrustLng that the foregoing answers your inquiry,
we remain
Very truly yours