THEA~~~ORNEY GENERAL 

OFTEXAS 

October 15, 1957 

Hon. Robert S. Calvert Opinion No. WW-277 

Comptroller of Public Accounts 

Capitol Station Re: 

Austin 11, Texas 

Legality of refunding 

inheritance taxes deposited ursuant to 

Article fl 388, V.C.S., 

if decedent is a nonDear Mr. Calvert: resident of Texas. 

We quote the following excerpts from your letter 

requesting our opinion on the above-captioned matter. 

"Clara S. Kelly died on February 6, 1957, 

and an inheritance tax report was filed with 

this Department on or about May 2, 1957, for 

her estate by Joseph C. Jackson, an accountant 

of Austin. The report states the decedent was 

a resident of Travis County upon the date of 

her death. fiis report was sworn to by Eugene 

J. Kelly, son of Clara S. Kelly. 

d 

The value of 

the net taxable estate is $355, lg.33 consisting almost entirely of stocks and bonds located 

in a safety deposit box in the American National 

Bank of Austin. The only other property in 

which the decedent had a taxable interest was 

a life estate in a small house and lot valued 

at $5,000.00 in Alhambra, California, and a 

bank account of $1,030.00 in The California 

Bank of Alhambra. 

"Mr. Jackson was anxious to obtain waivers 

of the inheritance tax lien on all the stocks 

and bonds at an early date, so a hurried report 

was made which reflected a tax due of $5,379.82. 

Since the report was hurriedly made and we had 

no opportunit to make an early examination, we 

accepted the % 5,379.82 and placed same in our 

departmental suspense account as provided in 

Article 4388. 
Hon. Robert S. Calvert, page 2 (WW-277) 

"The State of California is now asserting 

a tax on this entire estate claiming the decedent was a resident of California at the 

time of her death. 

"Mr. E. H. Smartt, Austin Attorney, has 

written us a letter in which he reaches the 

conclusion that the decedent was a resident 

of California and asks for a refund of the 

tax now in our suspense account. 

"On the facts as stated in this letter and 

those given by Mr. Smart%, please advise this 

Department as to the domicile of this decedent. 

If you hold this decedent was a resident of 

California, also advise if this Department can 

legally refund said tax." 

In addition to the facts set forth in your letter, 

we quote the following facts from Mr. Smartt's letter. 

"A short history of Clara Sabrina Kelly 

would probably be helpful in determining the 

issues in question. Mrs. Kelly was originally 

a resident of the State of Ohio; her husband 

died about the year 1938, and thereafter she 

traveled between Ohio and California. Mrs. 

Kelly had two daughters living in Ohio and a 

son, Eugene J. Kelly, who moved to Austin, 

Travis County, Texas, from Kansas about 1942. 

In about 1938 or 1939, Mrs. Kelly went to 

California and bought a little home in Alhambra, 

and in 1942, she deeded this home to her five 

grandchildren retaining a life estate in herself. 

In 1942 she went back to Ohio and stayed some 

time, and in 1943, she came to Austin to live 

with her son, Eugene J. Kelly. Except for the 

property located in Alhambra, California, her 

estate consisted entirely of stocks and bonds, 

all of which she had delivered to her son, 

Eugene J. Kelly, and gave him a power of attorney 

with full authority to manage and control all 

of said stocks and bonds. 
. I 

- .-. 

Hon. Robert S. Calvert, page 3 (W-277) . .’ 

Mrs. Clara Sabrina Kelly, by 

instn;uhe&'dated September 21, 1943, 

executed an elaborate trust agreement In 

which she designated her son, Eugene J. 

Kelly, as her trustee, with full power 

over her entire estate to manage and control the 88186 for her benefit during her 

lifetime, and in this ‘GNst agreement she 

reafflrmed her will which had previously 

been made. In the latter part of 1943, 

Mrs. Kelly went back to California, she 

being then past eighty-three years of age, 

and never left Alhambra, California, until 

her death; after her death her body was 

taken to Ohio for burial. 

"By instrument dated May 11, 1949, Mrs. 

Clara Kelly revoked her will and stated that 

it was her full and deliberate Intention not 

to have any will In effect at the date of 

her death; so far as we have been able to 

ascertain this instrument of revocation 

was the last legal instrument ever signed 

by her. 

II 

. . . 

"Probate proceedings were filed in Travis 

CounCy under Section 180 of the new Probate 

Code, for the purpose of having the court determine that no necessity existed for administration and also for the purpose of declaring 

the helrshfp of Clara Sabrina Kelly. This 

action was taken solely for the purpose of providing a vehicle for the transfer, or sale, of 

the stocks and bonds which were carried in the 

name of Rugene J. Kelly, Trustee, for the estate 

of Clara S. Kelly. We Court found that no 

necessity existed fox. administration and found 

also that the estate belonged to the two 

daughters in Ohio and the son in Texas, share 

and share alike. 

"Since the latter part of 1943, all business 

transactions concerning the stocks and bonds belonging to Mrs. Clara Sabrina Kelly have taken 

place In Austin, Travis County, Texas, and such 

transactions have been handled by her son, 
Hon. Robert S. Calvert, page 4 (WW-277) / 

Eugene J. Kelly. The stocks and bonds 

were kept in a safe deposit box at the 

American National Bank, In Austin, and 

all dividend8 were payable to Eugene J. 

Kelly, TNStee. All Income tax returns 

were filed by the son with the Internal 

Revenue Department in Austin, Texas. 

/m ese income tax returns showed the 

residence of the beneficiary of the trust, 

Mrs. Kelly, as being Austin,Texasif All 

bills of Mrs. Clara Sabrina Kelly were 

forwarded to Eugene J. Kelly, in Austin, 

Texas, and payment made through a bank account established and maintained in the 

American National Rank in Austin. 

"We have been unable to find any 

written evidence of an Intention on the 

part of Mrs. Clara Sabrina Kelly to return to Austin, Texas, and in talking 

with neighbors in Alhambra, California, 

we have been unable to find any statement 

by her expressing such intention." 

We have been furnished with the following instruments* of Cita~~lnApplication to Probate Court; (2) Two Yc$veTrs 

; (3) Copy of Order of Probate Court; wo 

copies of Power of Attorney; (5) Copy of Trust Agreement; 

and (6) Copy of Revocation of Will. 

The application to the Probate Court states that 

the decedent died while in the State of California and 

at the time of her death had her resident in Travis County, 

Texas. 

The trust instrument embodied a will (subsequently revoked) in which the decedent recited that she was a 

resident of the County of Los Angeles, State of California. 

The Power of Attorney likewise recites that the 

decedent was a resident of Alhambra, California. The 

Revocation of Wills executed at Alhambra, California, 

May 11, 1949, contains no recitation as to residence. 

Article 7117, Vernon's Civil Statutes, reads, 

in part,as follows: 
. 

_ .- 

Hon. Robert S. Calvert, page 5 (WW-277) 

"All property within the jurisdiction 

of this State, real or personal, corporate 

or incorporate, and any Interest therein,. . . 

whether belonging to inhabitants of this 

State or to persona who are not lnhabitants. . . which shall pass . . . by the 

laws or ,@g descent or distribution. . . 

shall upon passing . . . be subject to a 

tax. . . in accordance with the following 

classification; provided, however, that the 

tax imposed by this Article in respect to 

personal property of non-residents (other 

than tangible property having an actual 

situs in this State) shall not be payable: 

(1) if the grantor or donor at the time of 

his death was a resident of a State or 

territory of the United States which, at 

the time of his death, did not Impose a 

transfer or inheritance tax of any character 

fn respect of personal property of residents 

of this State (other than tangible personal 

property having an actual situs in said 

State); or (2) if the laws of the State 

or territory of the residence of the grantor 

or donor at the time of his death, contained 

a reciprocal provfsion under which nonresidents were exempted from transfer or 

inheritance taxes of every character in 

respect to personal property (other than 

tangible personal property having an actual 

situs therein) provided the State or territory of residenoe of s-uch non-residents 

allowed a similar exemption to residents 

of the State OP terrltorJ of residence of 

such a grantor or donor.'" 

Stock and bonds are intangible personal property. 

Since California does not tax the Intangible property of 

non-resident decedents who were residents of a State or 

Territory of the United States, no taxes would be due 

the State of Texas in this case if Mrs. Kelly was domiciled 

in California at the time of her death. 

me following definition of 'domicile" is given 

In 28 C.J.S. 1, Domicile, Sec. 1: 

"Domicile is the legal conception of 

home, and the relation created by law between an individual and a particular 
Ron. Robert S. Calvert, Page 6(w-277) 

locality or country. The term has been 

variously define& the definitions agreeing substantially on the elements of a 

true,Sixed home, habitation or abode, 

where a person intends to remain permanently 

or IndefInItely, and to which, whenever 

absent, he intends ,to return." 

The above definition was 

Stone v. Phillips, 171 S.W. 2d 156 

uoted by the Court in 

Tex. Civ. App. 1943, 

aSSrd '9 2 Tex. 216, 176 S.W. 2d % 1944). 

322 

The acquisition of a domicile .- of choice is entirely a question of residence and intention. In other 

words, to have effected a change of domicile from Ohio 

to California there must have been an actual residence in 

California and an intention on the part ,oS Mrs. Kelly to 

remain there or to mske it he' home. It is not necessary 

that the Intention to acquire a new domicile should exist 

at the time of initial residence,but such intention may be 

formed thereafter. Tne foregoing general principles are 

supported by the authorities contained in 28 C.J.6. 11-14, 

Domicile, Sec. 9. 

Assuming that the Sacts which have been furnished 

you are true, it appears to us, primarily from the fact 

that Mrs. Kelly was in Texas, living in the home of her son, 

for less than a year, that Mrs. Kelly was a resident of 

California; hoPever, the Sac,ts are sufficiently conflicting 

in this case that we cannot say as a matter of law that Mrs. 

Kelly was domiciled in CaliFornia. This office does not 

pass upon questions of fact. 

IS you shoulc1 determin? that Mrs. Kelly was domiciled in California, we have o~nciuG!o that you would be authorized to ref+unci the money in view of the provisions of Article 

4308, V.C.S., which xsads fn part as follows: 

"The State Treasurer shall receive daily 

Srom the head of each Department, each of 

whom is speciall;r charged with the duty of 

making sane daily, a detailed list of all persons remitting money the status of which is 

undetermined or which is awaiting the time 

when it can finally b,a taken into the Treasury, 

togetJh..er vkth the actual rexittancr which the 

Treasurer shall cash anti place in his vaults 

or 9n legally authorized d,ePository banks,if 

the necessity arises. . . 0 A deposit receipt 

shall ‘be issued by the ComPtroller forthe 
-, . 

. . .- 

Hon. Robert S. Calvert, sage 7(m-8’7) 

daily total of such remittance from each 

Department; and the cashier of the 

Treasurer's Department shall keep a cash 

book, to be called lsuspense cash bcok,' 

in which to enter these deposit receipts, 

and any others issued for cash received 

for which no deposit warrants can be issued, 

or when their issuance is delayed. As soon 

as the status of money zo placed with the 

Treasurer on a deposit receipt is determined, 

it shall be transferred from the suspense 

account by placing the portion of it belongina to the State in the treasury by the 

issuance of a deposit warrant, and-the part 

found not to,belong to the State shall be 

refunded." (&phasis supplied) 

CONCLUSION 

Since this office does not pass upon questions 

of fact, and since in this case the submitted facts pertaining to the decedent's domicile are conflicting, we 

are unable to advise you as to the domicile of the decedent. Should you determine that the decedent was domiciled 

in California, you would be authorized under Article 4388, 

V.C.S., to refund the inheritance taxes heretofore paid. 

Very truly yours 

MMP,'fb 

APPROVED: 

WILL WIisON 

Attorney General 

By: */ 

Assistant 

OPINION COMMITTEE 

George P. Blackburn, Chairman 

W. V. Geppert 

B. H. Timmins 

John B. Webster 

REVIEWED FOR THE ATTORNEY GENERAL 

Ey: James N. Ludlwn