Untitled Texas Attorney General Opinion ( 1942 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAG
AUSTIN
Honorable A. J. ~Lqakett
County Attorney
Ctn?ial county
New Sraunfel8, Texee
Dear SirI ..
spinion on a questl6n
of Art. 8986, Reri8ed
Ltf13ieXoX one-half ot one per bent
recelpta of each executor, adminis-
upon the a?prcral of the eihlbltcr
ment of the aboount of euoh exeoutor,
, but no more than one @oh
eU on any anount reoelved br
strator or guardian.'
"The queetion is!
"Does the phrase 'aotual cash reoeipts ef each
exeoutor, adzainistrator or guardian, upon the approval
of the exhlblta and the tIna settlement of the aoo,ountt,
include cash on band at time of death of teetator or
intestate as &own in such aocount?
Honorable A. J. Luokett, page 2
*The only deoialon crlorely related to this
question is Willie ‘18. Harvey (Clr. App.) 26 S.W. (2d)
page 289. Hem the court had under consideration a
cam of an Independent “Xxeoutor, and not an a&minis-
trator, guardian or executor uith will annexed, the
cmrt 8dsiI;LttinfT 'tizlsapeclfio case presented here
on agpoal may not be reg?.rdeda6 ir.its (Art. 3926)
scope.'
WYour opinion Ho. O-811 would award to the County
Judge the coPlnisslon Of OW-half of one per eent upon
all aeah received by so ereeutor including sohey borrowed
by the exeoutor to pay olaiars a&air& the estate. From
thls deoision it is obvious that the question doe8 not
depend on whether the caeh wad earned or is the oorpw
of the estate. Ii aoacy borrowed is aoney reoeived by
the executor, then surely oath on hand turned over to
tho exeoutor at the beginning of the aooouuting period
1.8 also money reeelved.*
We note that you say, “Your opinion Eo. 0-2ll
would award to the County Judge the ooraui8alonof one-heli
of oae per sent upon all oash reoeived by an executor lnelud-
ia6 money borrowed by the exeoutof to pay claim.8 e.gaiaeh the
eetate. From thLe dsolslan it ir obvious that the question
does not depend oh whether the oash was earned or $8 t&e
corpus of the etha to. It pLonsy borrowed is rmreg received
by tha exeoutor, then surely cash on hand turned over to the
execl;tortt the beginning of the aaoountinq ;rcriodis aleo
aoney recelwcd.%
Ap2arcntly you have misaomatrued our opinion No.
O-811 where 0.1 page 4 of said opinion it Is expressly stated;
* it is established that the term lreoeipt*
as use; in'the statute doe6 not m&race cash on deposit
in banks at the t&e of the death or the teetator. Tex.
Jur. Vol. 25, page 260; Coodwln VE. aowns, 280 S.W. 512;
Gillis va. Yarva~, 26 Y.3. (2d) 2S2.A
Honorable A. 3. Lualsett,
page 3
In the ease of killis v. Harvey, supra, it is
true that the court had under considerationa case of an
independent sxeeutor. However, the court expressly stated
in pert, "An independentexecutor Is not includedwithin
the term exeoutor, as implied in the artiale, and the term
reoeipt therein used does not embrace oash on deposit in
the bank at the death of the testator. . . .”
The eomrt further stated in this case, *It is
thought the terrr”aotual crashreooipts* should be held to
spsoifioallyderaribe monies receivedby the ereoutor other
than oash or protits of the estate nhioh was on hand when
the tertator died, because the words wed point to and imply
that meanilrg.’
In vien of the foregoing,the above etated
question is respectSullyansrsred in ths negative.
We also dlr6ot your attention to our opinion
So. O-4447, nheredn it was held that the County Judge of
Klaberg County was not entitled to a aamalsrion a8 prarlded
by Art%ole S9236,Vernon's Annotated Civil Ztatutes, under
the given faotr. We enoloee a copy of opinion No, O-4447
Sor your oonvsnlenos. Apparently you have 8 copy of our
opinion Bo. O-811 and ue do not enolore a oopy of the SW.
Trustin& that the iorbgoin$ fully ammets YOW
lnqulry, we are
Youre very tlu1y
BY
Ardell WillhaS
Asal stant