Untitled Texas Attorney General Opinion ( 1947 )

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R-110
Hon. Jesse James Opinion No. V-52
State Treasurer
Austin, Texas Re: .What steps should be taken
by the beneficiaries under
the will of Ada Shaw Wright
in ettempting to collect
money which has now been
paid into the General Reve-
nue Fund?
Dear Sir: :
Your letter of Feb. 10, 1947, reads as follows:
“I enclose herein the following documents:
“1. Affidavit of Grv’ille Gri,f,fin Shaw
2. Affidavit of LeUa M. Shnw CaIbraith
3. Certified copy of the will of Ada S. Wright,
beceased
“For your information, $458.25 was received by
this department on May 13, 1939, and our records $how
the amount was credited at that time to General Reve-
nue and a record of the deposit kept in our Escheated
Estates File.
“&cording to ,the will, thi.s money was left te two
heirs, -’ ane of which was th,e Mother, now deceased, of
the two claimants, G;Brt,i:fied copy of the,ir l-&tkaet’s witi
has not been fu.rni,shea me.
“Please advise me what actton I should wrire th,e,$s
people to take in order to cdilect &sir share of the
above amount.”
With your letter you enclose a Fortified copy of the will of
Ida Shaw Wright, from the probate lq$&@S of Chyson CoVntp, Tex-
as, You ,have also furnished tu ua a ao$%y of the order of the Probate
Court of Grayson County entered on &C 7th day of March,, 1939, ap-
proving the final account of J. R, Hai%&, EXeCUtor of the estate of
Ada S, Wright, and closing the estate, ‘This order conforms to the
piovision,s of Art. 3644, V.A,.C.S., which reads in part as follows:
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Hon. Jesse James, page 2 Opinion No. V-52
“Upon the settlement of the final account of any
executor or administrator, if the heirs, devisees or
legatees of the estate, or assignees, or any of them,
do not appear or are not represented in the court,
and there are any funds of such estate remaining in
the hands of the executor or administrator, the coun-
ty judge shall enter an order upon the minutes requir-
ing such executor or administrator to pay such funds
to the State Treasurer.”
It is obsarved that this money, $458.25, was received by
the Treasury Department on May 13, 1939, and as reflected by your
records was deposited to the credit of the General Fund. This mon-
ey was erroneoubly placed in the General Fund, for it is clear that
the purpose of the enactment, of Articles 3644-3660, V.R.C.S., under
which the money was received by the State Treasurer, is that the
Treasurer shall keep a record of such fund, and be prepared to pay
claimants the amount due them when the law has been complied with,
and does not contemplate that such funds be placed in the General
Revenue Fund. In other words, as said by Judge Sharp in the case of
Manion v. Lockhart, State Treasurer, (Supreme Court of Texas) 114
S. W, 216, the State Treasurer becomes merely the custodian or trus-
tee of the fund by virtue of the articles of the statute. This opinion
was rendered March 16, 1938,, more than a year prior to this deposit,
and should have been followed. In this case fudge Sharp clearly con-
strues Articles 3644 to 3660, V.R.C.S., and Imoints out explicitly the
steps to be taken to collect such funds from the Treasurer. They may
be briefly summarized as follows:
(1) Claimant to the fund shall institute suit therefor, by pe-
tition filed in the county court of the county in which the estate was
administered, against the State Treasurer, setting forth claimant’s
right to such funds, and the amount claimed. (Art. 3653);
(2) The proceeding shall be governed by the rules for other
civil suits, and if judgment is for claimant, a certified copy of such
judgment constitutes sufficient authority for the Treasurer to pay the
amount for which judgment is rendered.
It is apparent that the claimants to the fund here in question
have not up to now pursued the statutory remedy to recover the same,
and until this is done you are without authority to pay over these
funds to claimants.
It does not follow, however, that claimants are without a
remedy. The facts in the Manion v. Lockhart case,, supra, are iden-
tical with the situation here, except that in that case the claimants
pursued the further provisions of the statute and reduced his claim
to judgment, just as the claimant will have to do in this instance,
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Hon. Jesse James, page 3 Opinion No. V-52
before being entitled to payment. After this has been done, Judge
Sharp points out, the only remedies available to claimants under
such circumstances in the following language:
“It is undisputed that relator has fully complied
with the law and is entitled to be paid the sum of
money claimed by him. It is not shown, however,
that relator cannot obtain the money due him by an-
other complete and adequate remedy. While it is
true that the money due relator has been placed in
the general revenue fund, the Legislature has not
refused to make a specific appropriation to pay re-
lator’s demand therefor. Besides, he has an ade-
quate remedy by an ordinary suit. . . ,”
In other words after claimants have legally established
their rights to the funds in question pursuant to the provisions of
Articles 3644 to 3660, V.R.C.S., they are then in a position to ask
the Legislature to make a specific appropriation to pay their
claim, which cannot in any event be paid otherwise, since the
money is now in the General Fund and cannot be withdrawn ex-
cept by a ,specific appropriation to that end.
We believe the foregoing is sufficient to enable you to
advise these claimants of their rights in the premises, and the
necessary prerequisites to be followed.
It is not to be understood that we are passing upon the
merits of these claims. That is a matter that can be determined
only by judicial proceedings, as provided for in Articles 3644 to
3660,” V,.R,C.S., supra.
SUMMARY
Claimants to money deposited with the Treasurer
pursuant to the provisions of Articles 3644 to 3660,
V.R,CIS,, by executors or administrators of estates
because they are unable to locate the heirs or bene-
ficiaries entitled to receive the same may be paid out
by the State Treasurer only in accord with the provi-
sions of said articles of the statute, and if the money
has been erroneously deposited in the Gaineral Fund,
it may then be withdrawn only bp an appropriation by
the Legislature, and then only after it has been judi-
cially determined who are the rightful owners of said
funds. Such funds should not be taken into the treas-
ury as state funds and cre,dited to the General Fund,
but should be held by the Treasurer as c,ustodion for
the benefit of the rightful owners, and then when such
Hon. Jesse James, page 4 Opinion No. V-52
owners have been j~Ueially determined axid a certi-
fied capy of the ju&gment furnished to the State Treas-
urer, he is axklwriaed t6 pry cut the same without any
appropziurtion.
Yours way truly,
ATTORb%YGE&ERALOF TEXAS
L. P. Lollar
Asaiirtant
LPL:AMM: al
Apgw
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APPROVED
OPINION COMMITTEE
BY bWB
CHAI!RMN AT ORNEYGENERALOFTEXAS