Untitled Texas Attorney General Opinion ( 1957 )

. >:1
Hon. Robert S. Calvert Opinion No. WW-9
Comptroller of Public Accounts
Capitol Station Re: Classification for
Austin, Texas inheritance tax purposes
of a deceased daughter’s
former husband who had
~remarried and been
divorced prior to decedent’s
Dear Mr. Calvert: death.
You have advised us of the ‘following facts. Jessica S.
Pike died on March 16, 1956. Under the terms of her will, she
devised and bequeathed all of her estate to her daughter, Phyllis
Pike Cahn and to David D. Cahn, or the survivor of them. At the
time of the execution of the will, David D. Cahn was married to
Phyll.is Pike C&n, who died on September 2, 195 1. David D. Cahn
remarried on November 5, 1954, and was divorced from his second
wife on June 23, 1955. He was unmarried on the date of death of
Jessica Pike Cahn.
You state that the attorneys for the estate have taken the
position that David D. Cahn should be classified for inheritance
tax purposes under Class A - Article 7118, Vernon’s Civil Statutes,
and request that we advise you as to the proper classification. If
Mr. Cahn cannot be classified under Class A, he will necessarily
be classified under Class E - Article 7122, V.C.S.
The pertinent provisions of Article 7118, read as follows:
“If passing to or for the use of . . . the husband
of a daughter, or the wife of a son, the tax shall be
”
. . .
Mr. Calm is thus srcking to come wltlrin thr Class-A
group provirlrd for a “husband of a daughter. . .” This provision
and the roroll,ary provision for “wife of a son” hove been construed
by our courts.
In Lewis v. O’JIair, 130 S.W.Ld 379 (Tcx.Civ.App. 1939)
the court Jwld that the surviving wife or widow of a deceased son
of thr decedent came within the provision above quoted for a “wife
of a son”. We quote the following excerpt from page 379:
Hon. Rob,: t S. Calve r? page 2 (WW-9)
.~
“Appellec, Mrs. Hattie O’Halr, the party assert-
ing the right io be placed in Class A, is the surviving
wife (,not having remarried) of Will O’Hair, .who died in
1919.” [Emphasis suppllex}
In Calvcct v. Fisher, 259 S.W.2d 944 !Tex.Civ.App., 1953,
error ref.) !~h~%````~erned wi‘h ihr following facts. The
decedent’s daughter,: wlio predeceancd hrr, had been married to one
of the bcnrliciarics nomcad in ihc’will. Subsequent t.o the daughter’s
death and prior to the death of 1.1~ drc&ien!.. f.hr beneficiary had
remarried and was married at the dai.k* o.! ihc deat.11 of t.he decedrnt.
The court held tha.! !.hr hzncti.iciary should be classified
for inheritance tax purposes under Class E rather ihan under Class
A. At page 045 the court said:
“The sole question p-rscn!.ed by rh~s appeal
is: Did f.he tart l.hat oppellec remarried during the
lifetime of the testatrix and alter the deaih of his
wite Hazel Amanda dr.sttoy his sta+us as ‘the
husband of a daughirx.’ of the tesfaf:r-ix?’
In holding thai. the status of. ‘hrisband of a daughter’ was
deskoyed by remartiagc- during the decrdeni’s lifeiimc, the court
pointed out tzhat bot.h ihe O’Hair case and --. Johnson v. Davis, 198
S;W.2d IL9 (7cx.Civ.App.~&`` CIVLV reI..,n.r.e.) recognize Lhat
Articlc 71 I8 uses the words ‘rrife- and “h.usband’ ,in the scnsc of
surviving wiI’c. or huskand, .vidcw or suitlower. The court rkasoncd ’
fha? ‘he Ix, rm -‘wiclowcr- she ;rld ha: given ihe sense in whikh it is
ordinar ilk used and tha!. the ac.cep+d meaning of the word is “a
man who has lost. his wile by dcxai.1~ and has not. remarried.”
We think t.hat ihe Calveri cabe is con!.rolling since the
- v--e.
Sllpreme Court refuse-d wrii. or cr7.0~‘.
Hon. Robert S. Calvert, page 3 (WW-9)
decedent’s death, should be classified
f~or inheritance tax purposes under Class E -
Article 7122, V.C.S. Calvert v. Fisher, 259
S.W.2d 944 (Tex.Civ.App., 1953, error ref.).
.’
Yours very truly,
WILL WILSON
Attorney General of Texas
By &&/L&/a P2 d+&+?7& @-
Marietta McGregor Payne
Assist.ant
MMP:cs
APPROVED:
OPINION COMMITTEE
H. Grady Chandler, Chairman