Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Hoaorable L. 01 Bowel1 Aoting County Attorney
BoVio County
Texorkaru, fexar
Dear Sir% '
an's general bond sl- on file is suffioient er double the amount atie ~1~8 double the or any pe~00nal prop- the hands of the by the 48th Legislature, Regular SeasIon, 1943.
eassry for the guardian to file a *peol.+l aeler bond In double t&e amount for ohloh real eetatr is sold where the guardlan*r general bond al- ready on file ir auffioient to oover double the amount of the sale plus double the amount of any personal propert in the hand8 of the guardian at the time of t 8 rale. , 3;
Honorable L. C. Bosvell, page 2
'The intention of this amendment is to &arify the old statute but It still does not clearly indioate vhether or not It 14 neoes- tmry to file a speolal as184 bond or merely to file an order of the County Judge approv- ing the guardlan~r general bond vhere it is mrrlolent . *
Article 4141, Vernon~s Annotated Civil Btatutea of Texa8, require8 guardian of the ertate of 8 vard to give a bond a8 therein mentioned au a quallfioatlon of the guardlM.'
Bowe Bill 482, Aots of the 48th Legl4l'ature, Regular g4344lon, 1943, aend- Art1ol.e 4201 and Artiole 4216 V8rnontr Annotated Civil statutes of Texas, r8ads In part aa rollovat
: "Art. 4201.
aAn order for the sale of real estate shall rtatet
"1. The property to be sold, giring~suoh
deaoriptlon of It ad will Idsntffy It.
'2. Whether it Is to be sold at publie auction or at private 881.8, and if at publlo motion, the time end place of suoh aale.
"3. The necearlty and purpose of ruoh eale. "4. That no sale of real estate made by the guardian rball be conflmed, nor ahall title of the ward to euch real es tat8 pars to thg pur- chaser unless and until it shall ffrrt be found and determined by the Court, by an order duly made and entered, ,that the guardIan has flied a good and auffioient bond in an amount equal to tvioe the amount for vhI&.aaid real estate 14 $016, and that the suretI84 on 4uch bond are sol- vent, provided, however, that where the aale of such reel eetate 14 made to the owner or holder of’ a secured clslm agelnat the estate, and the
322 HOnO~b18 &I C. BO4U812, Page
49e 14 of the real estate aeourlng such olaim and is in fu21 payment, liquidation, and aatls- r.30ti0n thereof, orily the amount 0s Cash, if any, aotually reoeived by auoh guardian in 8~~844 or the amount neoersary to pay, llqufdate and eotls- fy auoh olairn in-f'ull, ahall be aonaidersd ia pa84lag upon the 8uiriOi=0y 0s the bond aa here- lnabove rq,ulred.
45, It ahall require the s&e to be m4d4 and the report th4reor to b4 rqturned to the Court lt~auoordanos rlth the UW.~
. * . . .
“At aaj ti4W after the 43Xpi~tiOtt Of fiY4 (5) day8 +rter the rii~,or a report 0s 4al4, the manner in vhioh the'CoUrt ah811 inquire iato au& 4ti8 Va4 llode &Id hear 8YidenC4 in support of or against 4uoh report, and if 4ati4fi8d that rwh 4814 wa4 fairly mad4 and la Onaiosalty uith lav aud thet the gpardipn ha8 an file a good atid suffioiknt band in an amount equal to tuioe the valu4 fop vhiOh aald +eal eatat is being sold, and if and when the guardian14 ea3.d bond ha4 been examined by the Couzt and found to be in the amount above required vlth good and auPS& oient ruretiba thereon, a4 evidenced by 8n order duly 4md4. and entered by th8 Court to that ef- f%Ot, the Court shall oaure to be entered a de- or44 oonfinaing euoh aale and order the report of 44l4 to be recorded by the Clsrk and the proper con~8yen08 of the property sold to be made by the gu%rdlan to the puroha44r, upon corn- plianoe by auoh puxwh+ser vlth the temm of sale, provided, hovever, that Uh8M the 4f&28 Of auoh real 44t&8'%4 &a to the owner or holder of a aeoursd alair againat estate 'aad the 4am4 la of tha real estate 44ourS.ng snob olaia and la In full payment, liquidation, and aatis- faction thereof, only the uDount of .caab, if any, actually recieived by auoh gUaX'di+~ in 4X486% Of *4 Honorable I,. C. Bosv822, Page 4
th8 cuPOuut ll408448l'y t0 pay, 2iqtidet9 and gatisfy such 02aim in full, shall b8 oon- aldered, together vlth the other property of the estate, 3.n passing upon the surrioien0y of such bond, Th4 provlelons of this Act shall be mandatory and unlese the Court eball Slrat that guardl~~a bond 1s adequate d%t%m.he and solvent, as 8boYa set forth, as evidenoed by an order tie and entered by the Court to that %ff%Ct, any sale of real eatate hereafter made mder the provirions OS this Title shall be void; provided, that the provlalonr hereof ahall not apply to 08881) pending at the time this lav become4 effective . . . .' .*
Prior to the enactment of House Bill Ho. 482, aupra, . the App82lafe Courta Of this Stat8 haY8 rendered many opfn- ions oonstrulng Articlea 4202 and 4226. However, many of these qasea do not pa44 upon the qU84tiOI.I Under consideration; moat of them are oau4ea in which the attack on the judgkent of the Probsts Court was made oo2laterally, and, Sollowlng the well-known ~28, tines4 authorities hold that the Probate Court is 8 oourt of gene*2 jurisdiction, and that Its judg- ments are pwsumed to have been properly rendered on suffl- clent facts and are not subject to oollatera2 attacks. HOY- %Yer, it vas held in American Indwanlty Company va. Robe1 (Texaa Conrmieslon or Appeals) 235 s.w. 867# that Article 4201, rSqUired a lndepend%nt and 48p8r8t% prior t0 its aZ?M&dent, bond S'rm that given a4 a quallSlcation of the guardi,an. It will be noted that Article 4201, supra, as amended by liouse Bill 482, aupra, requires the guardian to file a good and 4urricient bond in in amount equal to tvica the saount for vhich the real estate is sold. (Al40 see the case City of Tyler V8.~FirSt Rational Sank of Beaumont, et al, 46 S.W.
(26) 454).
After carsfully considering Bouae Bill 482 and the foregoing authorities, it is our opinion that it Is necessary for the guardian to file 8 speolal sales bocd in double the amount for vhloh the real estate is sold. In other words a speolal sale bond must be filed in oaaplianoe vith said House *5 Honoreble L. 0. Bo~vell, Page 4
Bill& re&wdleas of the aamunt of th6 general bond QII file vhen reel estate 18 rold by the gumdlan.