Untitled Texas Attorney General Opinion ( 1951 )

November 20, 1951
Hon. Robert S. Calvert Opinion No. V-1351
Comptroller of Public Accounts
Austin, Texas Re: Exemption from inherit-
ance taxes of bequest to
Kerr County War Memo-
Dear Sir: rial Association.
You have requested the opinion of this office as to
whether a bequest to Kerr County War Memorial Association is
exempt from inheritance taxes by virtue of Article 7122, V.C.S.
From the file submitted with your request we have
gathered the following facts. In his last will and testament Wal-
ter Jarmon made the following provision:
“FOURTH: All the rest and residue of my prop-
erty and estate, whether the same be real, personal
or mixed, monies, notes, bonds, stocks, proceeds from
insurance policies, chases in action, and all other prop-
erty belonging to me of whatever type or description
it may be, I hereby give, bequeath and devise to W. G.
Garrett, Jr. and L. D. Garrett, as Trustees, for the
use and benefit of Kerr County War Memorial Associa-
tion, or its successors, said Association being formed
for the purpose of perpetuating the memory of those
persons who lost their lives in the service and defense
of the United States, and which said Trustees shall have
the following rights, powers and duties:
,“l. To hold, manage, control, sell, execute con-
veyances of, dispose of, incumber, invest, reinvest
proceeds of, rent or lease, all or any part of my said
property and estate, and any amounts so received, as a
result of the execution of said above powers, shall be
paid over to the said Kerr County War Memorial Asso-
ciation, or its successors, by my said Trustees, as in
their discretion they shall deem proper, such sums so
paid over to be used by the said Association or its suc-
cessors in the erection, construction, maintenance or
upkeep of a Memorial Building to be erected in memo-
ry of those persons who gave their lives in the service
of and defense of this Country.
.
Hon. Robert S. Calvert, Page 2 (V-1351)
“2. I do hereby empower my said Trustees, if
in their discretion they deem proper, to convey and
execute proper instruments of conveyance to the said
Kerr County War Memorial Association or its succes-
sors, of my said property and estate, or any part of
the same.
“3. The said trust herein created shall continue
to exist for a period of ten years, unless sooner ter-
minated by the said Trustees by the execution of any
of the powers herein conferred. In the event such trust
is not so terminated, then at the expiration of such ten
year period, all of my property and estate then remain-
ing shall pass to and vest in fee simple in the said
Kerr County War Memorial Association, or its succes-
sors:
Articles II, III, and VI of the Constitution and By-laws
of the Kerr County War Memorial Association read as follows:
“Article II - Object
“Section 1~
The object of this association shall be
(a) to erect, equip, maintain and operate a
memorial community building to honor all
those who served in World Wars.
(b) to provide opportunities in such building
in Kerr County for wholesome recreation,
education, civic and other leisure-time
activities on a democratic community-wide
basis.
“Article III - Board of Directors
“Section 1~
The management and administration of the affairs
of this association shall be vested in a board of direc-
tors of 50 members who shall serve until January 1,
1946. One month previous to January 1, 1946 the Presi-
dent of the association shall call a meeting of the citi-
zens of Kerr County for the purpose of electing a New
Board to carry on the affairs of the association. Said
board to consist of as many directors and to serve such
time as shall at that time be determined.
“Article VI - Meetings -.
Hon. Robert S. Calvert, Page 3 (V-1351)
“Section 1.
There shall be an annual~meeting of the citizens
of Kerr County the first Monday in November. Such
meeting shall be publicized through the local papers.
“Section 2.
(a) There shall be an organization meeting of
the board of directors held as soon as possible after
the annual meeting of members for the purpose of
electing officers, appointing committees and transact- ,
ing such other business as shall come before it.
.I
. . .
Article 7122, V.C.S., provides an exemption from in-
heritance taxes for “property passing to or for the use of the United
States or any r,eligious, educational or charitable organization when
such bequest, devise or gift is to be used within this State.”
In Attorney General’s Opinion V-958 (1949), this office
pointed out that the exemption allowed for charitable bequests is
not limited by the requirement that property pass directly to a
charitable corporation or institution, but is allowed if the property
-, passes to or for the use of a charitable organization.
The devise and bequest made by the above quoted por-
tions of Mr. Jarmon’s will therefore passed at his death tax free
if the Kerr County War Memorial Association constitutes a “char-
itable organization” within the meaning of Article 7122.
In general, the distinctive features of a charitable or-
ganization are that it has no capital stock and no provision for
making dividends or profits, but derives its funds mainly from
public and private charity and holds them in trust for tfe objects
expressed in the instrument creating the organization; and the
‘In construing the exemption from ad valorem taxation al-
lowed institutions of purely public charity, our Supreme Court
made the following statement:
“In our opinion, the Legislature might reasonably con-
clude that an institution was one of ‘purely public charity’
where: First, it made no gain or profit; second, it accom-
plished ends wholly benevolent; and third, it benefited per-
sons, indefinite in numbers and in personalities, by prevent-
ing them, through absolute gratuity, from becoming burdens
to society and to the state.
.I
. . . Charity need not be universal to be public. It is
public when it affects all the people of a community or state,
by assuming, to a material extent, that which otherwise
might become the obligation or duty of the community or
the state.” City of Houston v. Scottish Rite Benev. Assoc.,
111 Tex. 191, 230 S.W. 978, 981 (1921).
Hon. Robert S. Calvert, Page 4 (V-1351)
test is whether the organization exists to carry out a purpose
recognized in law as charitable or is maintained for gain, profit,
or private advantage. People ex rel. Hellyer V. Morton, 373 Ill.
72, 25 N.E.2d 504, 506 (1940); Congregational Sunday School &
Publishing Society vn Board of Review, 290 Ill. 108, 125 N.E~ 7,
9 (1919).
In Boyd v. Frost National Bank, 145 Tex. 206, 196
S.W.2d 497 (1946) the court discusses charitable purposes. We
quote the following excerpt from page 501 of the opinion:
The authorities leave no doubt that the
6.
” ” I
words ‘charitable purposes’ have a fixed meaning in
law and that a judicial determination may be made
with satisfactory certainty in every case where the
question of whether a given purpose is or is not char-
itable arises. Chapter 4 of the statutes of 43 Eliza-
beth, enacted in 1601, known as the Statute of Charita-
ble Uses, although not adopted in Texas, “is regarded
by many authorities as the principal test and evidence
of what the law will consider charitable uses,’ and the
enumeration of those uses as set out in the preamble
to the act was accepted as authoritative in Powers v.
First National Bank of Corsicana, 138 Tex, 604, 161
S.W.2d 273.
“Illuminative in this regard is the following quo-
tation from Zollman’s American Law of Charities, 8.187,
pa 123: ‘It must never be forgotten that the words “char-
ity” and “charitable” are technical terms. Since the
statute of Elizabeth, they have had a technical meaning
both in England and America, including even those states
in which the statute has been repealed or has not been
re-enacted or adopted, “They are lifted from their
popular and lexicographical meaning. In them survives
a history from which they have derived a special sig-
nificance. They condense volumes of controversy and
decision into a phrase which must be now read by the
growing light under which it has been developed.” ’
“And the following excellent definition of ‘charity’
and ‘a charitable use’ is evolved in 2 Perry, Trusts
and Trustees, 7th ed., § 697, p” 1182: ‘It will be seen
that the words “charity*’ and “a charitable use” have a
somewhat technical meaning in the law. * * * The
word “charity” in its widest sense, denotes all the good
affections men ought to bear toward each other; in a
more restricted sense, it means relief or alms to the
poor; but in a court of chancery the signification of the
Hon. Robert S. Calvert, Page 5 (V-1351)
word is derived from the statute of Elizabeth, [and a
public charity need have no special reference to the
poor.] Hence it has been said that those’purposes are
considered charitable which are enumerated in the
statute, or which by analogy are deemed within its
spirit or intendment. Another short but practical def-
inition ha’s described it as ‘a gift to a general public
use, which extends to the poor as well as the rich.”
But Mr. Justice Gray has given a definition which in-
cludes all the facts and circumstances, and all vari-
eties of charity under the law, and leaves nothing to
be desired. In his words, a charity in a Legal sense
may be more fully defined as a gift to be applied, con-
sistently with existing laws, for the benefit of an in-
definite number of persons,--either by bringing their
hearts under the influence of education or religion, by
relieving their bodies from disease, suffering, or con-
straint, by assisting them to establish themselves for
life, or by erecting or maintaining public buildings or
works, or otherwise lessening the burdens of govern-
ment.” ’
“Current legal concepts of what are charitable
purposes are well gathered into the following classifi-
cation in II Restatement, Trusts, 6 368, p. 1140:
* ‘Charitable purposes include
(a) the relief of poverty;
(b) the advancement of ~education;
(c) the advancement of religion;
(d) the promotion of health;
(e) governmental or municipal purposes;
(f) other purposes the accomplishment of
which is beneficial to the community.’
“Other guides which will satisfactorily conduct
the inquirer to an answer of the question, what are char-
itable purposes, are 2 Bogert, Trusts and Trustees,
8~361 et seq.; Zollman, American Law of Charities, set,
184 et seq.; 14 C.J.S., Charities, 5 1 et seq., p. 410 et
seq.; 10 Am. Jur., Charities, pa 584 et seq.”
The following testamentary gifts have been held ex-
empt from death taxes as passing for charitable or public purposes
or to charitable institutions: a gift for the support of a symphony
orchestra, State v. Central Trust Co., 17 Ohio App. 423 (1923); a
bequest to Shakespeare Memorial Theatre organized to keep alive
Shakespeare’s memory by the production and presentation of plays
’ ..
Hon. Robert S, Galvert, Page 6 (V-1351)
and also to assist poor members of the theatrical profession, In
re Hackett’s Estate, 234 N.Y.S. 299 (1929); a bequest for the use
of a farm foundation which was established to encourage commu-
nity effort and to improve rural life, People v. First Nat. Bank,
364 Ill. 262, 4 N.E.Zd 378 (1936); a bequest to an incorporated
memorial, the purposes of which were to bring about the civic
betterment of the residents of the United States and preferably
of those residing in the State of Ohio, Tax Commission v. Livin-
good, 40 Ohio App. 543, 178 N.E. 707 (1931); a gift to the inhabit-
ants of a town for the construction and maintenance of a town hall,
In re Clark, 131 Me. 105, 159 A. 500 (1932).
Cases recognizing as charitable trusts for the com-
memoration, maintenance, or preservation of particular events
or objects, monuments, memorials, and shrines are discussed in
12 A.L.R. 2d 888-893.
In view of the foregoing authorities, as the purposes
or objects of the Kerr County War Memorial Association previ-
ously quoted are clearly charitable, we conclude that it is a “char-
itable organization” within the meaning of Article 7122. Since the
further statutory requirement that the bequest or devise must be
used within the State is also met, the property which passed under
the fourth clause of Mr. Jarmon’s will passed tax free.
SUMMARY
The Kerr County War Memorial Association,
organized for the purpose of erecting and maintaining
a memorial community building honoring all who served
in World Wars, is a ‘charitable organization” within
the meaning of Article 7122, V.C.S. Since the require-
ment of Article 7122 that the bequest or devise must be
used within the State is also met, no inheritance taxes
are due on property which passed by will to trustees
for the use of the Association.
Yours very truly,
APPROVED:
PRICE DANIEL
W. V. Geppert Attorney General
Taxation Division
Everett Hutchinson B $4$usz-h<, 4&
Executive Assistant Mrs. Marietta 9
Mc regor Creel
Assistant
Charles D. Mathews
First Assistant
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