Untitled Texas Attorney General Opinion ( 1949 )

May 17, 1949
Han, Robert S, Calvert
Comptroller of Path& Accounts
Austia, Trxas Opinion No. V-829
Re: Classification for inher-
itance tax purposes of
son of decedent’s divorced
former wife.
Dear Sir:
From your letter requesting an opinion of this office and
from the file attached thereto we have gathered the following facts.
Otis Phillips, 5r. died testate on August 14, 1947. By the
terms of his last wilI and testament all of his property was to be
divided equally between his four named children, Clevy Phillips,
his former wife, the mother of his four children, from whom he
was divorced fn 1944, and Arthur Hamilton, the son of Clevy Phil-
lips by a marriage prior to her marriage to Otis Phillips, Sr.
Your question is whether Arthur Hamilton should be clas-
sified for inheritance tax purposes in Class A (Article 7118, V.C.S.)
or Class E (Article 7122, V.C.S.). To come within Class A Mr.
Hamilton must come within the group provided for by the phrase
“any direct lineal dascendant of husband or wife . . .” In the event
that he cannot be s9*classified, the provisions of Class E are ap-
plicable.
In Opinion No. O-7273, dated June 30, 1946, Hon. Grover
Sellers, then Attorney General, ruled that the daughter of a divorced
husband of the testatrix was net a “direct lineal descendant of fief
husband” of the testatrix. Since that date the consistent “exec&v<
or departmental construction” of this section of the statute has been
in accordanca with this ruling. We do not feel authorized to depart
from this construction unless it has been overturned by the Courts
or unless ft is clearly in error, It is urged in the brief submitted
in eupport of Ciass A classification that the facts of this case dis-
tinguioh it from the case presented in Opinion No. O-7273 in that in
this case children were born of the testator and Mr. Hamilton’s
mother. Various authorities are cited in discussing the point that
Hon. Robert S. Calvert, Page 2 (V-829)
under the same or similar facts the relationship by affinity con-
tinues though the marriage is dissolved by divorce or death.
Assuming without deciding that the relationship by affin-
ity continued to exist between Arthur Hamilton and Otis Phillips,
Sr. after his divorce from Arthur Hamilton’s mother, still the
question is whether he can come within the particular provision
here involved. We are of the opinion that the wording.of this pro-
vision and the decision of the Court of Civil Appeals in Johnson v.
Davis, 198 S.W.Zd 129 (Tex. Civ. App. 1946, error ref. n.r.e.) pre-
m the classification sought. Under the holding of the Johnson
case Clevy Phillips, the mother of Arthur Hamilton, cannot come
within the provisions of Class A as a “wife” of the decedent. This
being so, we are of the opinion that Arthur Hamilton is not a ‘fdi-
rect lineal descendant of . . .fafwife” of the decedent. You are
therefore advised that he shoEId be given Class E.classification.
SUMMARY
The son of decedent’s divorced former wife should
be classified for inheritance tax purposes under Class E
(Art. 7122, V.C.S.). Cf. Johnsonv. Davis, 198 S.W.2d 129
(Tex. Civ. App. 1946, err-pinion No. 0-7273.
Yours very truly,
ATTORNEY GENERALOFTEXAS
Assistant
MMC:b:mwb
FIRST ASSISTANT
ATTORNEYGENERAL