Untitled Texas Attorney General Opinion ( 1944 )

;c, OFFICE OF THE ATTORNEY GENERAL OF TEXAS
i’
:Q AUSTIN
i G”QYrnRBIILLII).
&no”*I” P=*c”*I
I
Honorable J. D. Loonoy
county Auditor, Bonle county
Boclton,Texas
refried 009ie8 or-tbp-
report 0r rale, ati
nletratdx ta eomeotion
ho Estate of W. S. Buoh-
eeger, Adaini8tratrix,
ing on an oplnlon whloh I
hi8 letter.
n Seegor, admlnlrtratrlx of the ,above
riled her sicond annual report IOPU-
Ath 0r wah, ~014. Atteohed to
re bhibit8 ‘A,’ ‘A-1’ &Ua '0.' Exhtbft
8 to chow al1 aarh reoelved 8nd dI8burred.
"During the period ofthl8 report the ad?aInI8-
tratrlx made epplloatloa to 8ell oerteln D. S. oovern-
ment bond8 or the per value 0r $1,376,000.00, a8 shown
in the attaohed application for order Of 8a1e. Order
or sale was Ia8ued on thin ep?lIcatIon, but up to the
time or the riling of the annual report attached hereto,
no report or sale had been made on the sale of these
bond8. #hen the County Judge examInsd the report, he
rod that the only Item 0r oe8h 8h0un In aonneotlon
with thi8 sale We8 an Item under IieoeIpt8In ISxhIbIt
'St of $U,789.39, eaid itom befq listed a8 *Differenoe
*o c o *-~CmON 1 5 1 0 DE CCNa TRUEO ls A DI.IITWLNT*L OP lNlON UWLEBS AP P F OYED II” IYE ATTOR NE” eENER *L OR F IT1 ST **.,*SANT
c
between value of U. S. government recuritier surrenderwi
and value ot U. S. Government seourltler received in ex-
change.' Upon being advised by the County Clerk that no
report or sale bad ever been filed on the rale of the
bond8 in que8tiOn, the adninistratrix wa8 ordered to
rile 8aId report, a oopy 0r whloh I8 attached hereto.
Couurel for the adnriaI8tr&trIx oontendl that there
bond8 were not 2.8old e8 8et out In hi8 applIoatIon
ror male, but w8re merely exohan d for other U. S.
Oovsrmeent bond8 et a prorit or rlg,709.3o, and
edminl8tratrix report8 a8 oa8h received only the
profit realized from tti880 called exohange.
"It I8 ay contention, and that 0r tlm county Judge,
thet the report oale rpeak8 ror it8el.fIn the rt30tthet
therrebOIId8 were 8old at the request Of the a&mini8tra-
trIx by the Chare National Bank to a bond hou8e In Mew
York, and the other reouritie8 mentioned purohered with
money roelized from sala 8ale, leaving a balance In oa8h
or $13.789.39, prom on the 8ele aa p&~1ha80.
We oontend further that although the report of
sale 8tete8 that tbe8e bond8 were uohanged, they were
In reality not lxobcPngod,but 8old, and regerdle88 or
the manuer 0r rale, thi8 mnnef oame into the bUta 0r
tin admlni8tratrix a8 oa8h reoeipte whether the mot
Wa8 aotually in a bank in Ha York or In Bowle OOUIIty;
that the rea8on tb bond8 were 8ent to Hew York for rale
Wa8 because there Wa8 no market in Bowie County tot 8uCh
a large amount of bond8, and in order to eel1 8aId bond8
tber had to be 8ent to a proper market.
w~elther the report 0r 8alO nor the 8eoond annual
report ba8 been approve4 by the County Judge. The qU(38-
tion 18,~ 8hould the report or sale rbow a rale or the8e
bond8 in8tead of a tran8ter 0r 8eourItIs8 with a oa8h
prorlt involved, and rhould the entire amount of the oele,
to-witr $l,SlJ,t59.QC be 8horm on the 8eeOna annual report
under the heaalng of ReoeIpt8, in8tead of the aanaer In
whloh it 18 now reported, to-witt~~iirerance between value
or U. S. Oovemment 8eourItIa8 8urrenderad. and value 0r
U. g. ~vernment eoouritia8 received in exchange, #l&,789.39.*
* * ."
In the application of the admini8tratrlx to nil 8uch
socurItie8, the adminiotratrix pray8 that she he authorized to
sell aaid bond8 and reinve8t the proceed8 In goverruncnttax rree
bond8 with such other order8 88 may be proper in the premIsa8.
The order of sale i88Ued on the above mentioned ap-
plication I8 a8 rOiiOW8:
COIJHTY,TJUAS.
"IN THE COUlyTYCOURT CF B(.PiIE
*On thi8 aOtb day of November, 1943, oeae on
for herAng the application of m8. Blen Seeger,
wdmIni8tratrix, for euthority to 8ell on the market
United State8 Government bond8 of the par value of
(b1,376,000.00,iUllJ deroribed in raid application,
and to relnvert the proceed8 thereor in non-taxable
united state8 Oovernmont 8eouritie8, aa the court,
after examining 8aid application and hearing the evld-
enoe thereon, I8 .ol the cplnlon that se14 application
8hould be, end it i8 hereby granted, and said AdmIUl8-
tratdx authorimd to 8el.lthe MOUFIti88 lirted in
said epplloatlon et the mar&et prioe and reInve8t the
prooeed8 thereof in non-taxable United Stat08 t&Warn-
sent bondr.
"/8/ J. Fred H0rrmm
Vount~ Judge."
The report of tbe adninlstratrix on the sale of the
b0oi2e, based on the r0reg0in~ order 0r aale, Is a8 rollowe:
*Cotieoi&8. Heloa tieoger,AdaInIrtratrix In the
above yrooceding, air-6
reports that 8Ub8eqUent to the
order or tbie Court dated NoveePber e0, lOIS, In respect
to the diapoeltlon of United ateta Oovsrnment bond8 of
the per value of #1,37b,OOO.O0, ehe sent raid bonds to
The Cha88 Uational Beak Or New York with in8trustionr~
to aaaure thsreior e$$ United State8 Trearurp Bonds
M/69 of the pnr value oi $1~SOOpOO~OO~ that said Bank
dollvered aaid bonds to C. J. Devlue h Company, New York
dealers J.ngovernment bonds wd received oredlt for the
market value thereof; to-wit: $1.513.259.64; that sala
G. J. Devlne h. Compmy thereupon oharged said The Chtae
National Dank 0r sew York with the sum or $1,500,47O.Ei,
repreeentl:igrcirketvalue or Z&6 United state6 Treasury
Bonde es/a9 or p&r value of ~1,500,000.00, and al80 g&ve
saia Bank credit in oath 1,~the WEI or $13.789.39.
HonorAble J. U. Loonep, page 5
'lOUP A&d.MtratTiX 8hOWi that in iiW Or
the united State8 Government bonds 0r par value or
$1,376,000.00, rererrdi to in ths order or this
Court dated November e0, 1943, she hnr received a$$
Unfted St;~“.ea
Troarury Bond* 94/W of the par value
or $1,800: ,000.OO and ha8 reaelrekYin aamh the mm
of #lE,789.39, both or rhlah Itema are Included in
her report mmle a* or hbruary 99, 1944.
"HRS. K&LEN SEEDER, ADNINISTRATFUX
91: A. L. Burrord
"&ir AttorIieJ.*
Artlola Sdb8, Vernon’8 Annotated Civil St8tute8, pro-
vide8r
'30 rale of nny property of an l8tato 8hall
bo made by an 8xeOiitoror admlnlrtrator without en
ardor of the court authorlalng tha #anto.”
mtiala Z&585,Versn*r Annotated Civil Statutea,
provider t
“All salor 0r property of an eatala &all br
reperted to the aourt orasring the saame wlthln thirty
dapr after the llem are medo. The report of sale &all
be In writing and ahall k rubiaaribedand #worn to by
the executor or administrator. Bald report map be made
Honorable T. I).Loomy, y.i@ 6
j.nterm time or In vaoation, and when returned,
shall be filed by the clerk and the filing thereof
noted upon the judge’s dooket, and shall show:
"1. The time and place or the sale.
"2. The property eold, describing the same.
"3. The name of the purohaser of such
property.
"4. The amount for which eaoh article of
property eold.
"5. The date of the order of the oourt au-
thorizing the sale.
"6. The terma of the sale, and whether at
pub110 auatlon or made privately."
Artiole 3430, Vernon’8 Annotated Civil Statutes,
providea:
When an executor or admlnletrator deem8 if
for the interest of the estate to purahaae or er-
ohange property, or to take any claims or property
for the uee and benefit of the estate in payment
or a4 debt due or owing to the estate, or to aom-
pound bad or doubtful debts due or owing the estate,
or to make oomgromleea or eettlemente In relation to
property or claims in dispute or litigation, or to
aompromlee or pay in full any seaured alalm whioh haa
been allowed and approved aa required by law against
the estate by oonveylng the real estate eecuring the
payment of the claim to the holder thereof in full
payment, ll~uldatlon and satlerattlon of such,alaim
and the cancellation of any and all notes, deed of
trust, moxlgageaor other lien8 evidencing or mour-
lng the payment of such olalm, he shall present an
application In writing to the County Court represent-
ing the facts; and if the Court IS aatleried that it
will be to the interest of the estate to grant the
same, an order shall be entered showing the authority
granted. The exeoutor or administrator may also re-
lease mortgages upon payment of the debt secured
thereby."
134
Honorable J. D. Looney, p~-ge7
Generally 8p4aking, "probate aourte generally have
power to confirm or to dieepprov4 a 8aI4, and in the absenoe of
a clear showing to the contrary, a con8t's aothority to act in
oonflrmlng a sale will be preeumed. A oourt may 00nrim a sale
even though it was not in acaordance with the order." Corpus
Jurls Seoundum, Vol. 36, section 607 (a),,page 581.
In the case of Bllokensderier v. Hanna, 132 S. W.
678, at page 682, it is nated:
"* * * Again and again thia Oourt ha8 held
sales of real estate under order8 or the probate
courts to be judicial sale8 and the confirmation
of suoh sale8 by the probate court 18 the crowning
aot and cure8 all prior irregU.ariti48, provided,
or aourset,always, that the oourt had obtained
jurisdiotion or the subjeot-mstter and over the
parties. * * *v
It 18 etated in your letter that %either the report
or sale nor the eecond annual report has been approved by the
County Judge;" Counsel for the adminietratrlx aOntend8 that
these bonds were not sold a8 set out in hi8 applloation for sale,
but were merely exchanged ior other United States Government bond8
at a profit Of #12,789.39, and the adminiatratrix report8 a# cash
received only the profit realized from thi8 traneaation. While
on the other hand, among other thing*, the County Judge contend8
that although the report of #ale states that these bonds were
exchanged, they were In reality not exohanged, but aold, end re-
gardless of the manner of sale, thie money oame into the hands
of the admlnistratrlx a8 cash receipt8 whether the money wae
actually in a bank In New York or In Bowle County. It 18 ap-
parent that the paramount question Involved is whether the County
Judge is entitled to the oommlasion under Article 3926, Vernon'8
Annotated Civil Statutes, on the entire prooeeds involved in the
above mentioned transaction or whether the County Judge is en-
titled only to the oonunlssionallowed by Art1014 3926 on the
$12,789.39 cash actually received by the administratrlx.
Although not speolfloally asked In your request, a8
sretofore stated, It Is apparent that the main question involved
HonortibleJ. U. Looney, p.#e 6
tmnoerne the amount ot aomnission due tha Judge under Artlola
3926. It Is our opinion that the County Judge would be en-
titled to the aomlssions rovlded by Article 3926 on the
$12,789.39 and not on the 1,5X5,259.64.
YOUr# very truly
AT'i'ORNEYGENXRALOF TEXAS
BgedA
Ardell Williams
Assistant
AVi:EP