R-949

E ATTORNEY GENERAL

PRICE DANIEL ATTORNEY GENERAL Q,F TEXAS Overrulesopinion dated
Au~~IN~~.-I~xAs 5/24/37 to Cecil Ii. Bird Comptroller's

Dept. December 3, 1947

Hon. Geo. R. Sheppard Comptrollerof Public Accounts Aua tin, Texa

a Opinion Ro. V-440
Re: Whether half sister Is included in the classifioatlon

of sister for inheritance tax purposes Dear Sir: By your letter of Rovember 21, 1947, we are advised of the followingfacts:

"This departmenthas fixed and assessed an Inheritancetax against the eatate of Leo T. Cone, late a resident of ffonxales County. The estate, under the terms of the will of the deceased,was devised to two sisters,8 brother and a half sister,and when applying the exemptionsallowed under the statutes,this departmentallowed a full exemptlonof $10,000 each to the sisters of the full-blood,

but only allowed an exemption of $5,000 to the slater of the half-blood. "The exemptionallowed the sister of the half-bloodFs now In controversy with the Attorney of Record,Mr. Ii.1. Miller of Gonzales, Texas.
. . ."
We are further advised that the value of the propertypassing to the half sisterwas less than $25,000 and that the tax was computedat the rate of 3$ of the value In excess of $5,000. You state that your ruling was based on an Opinion of this Departmentrendered in 1937 and request that we reconsiderthe holding of that Opinion. Article 7117, Ch. 5, Title 122, V.C.S., imposes an inheritancetax "In accordancewith the followingclassifications". The Articleswhich follow establishdiffer-Hon. Geo. Ii. Sheppard - Page 2 (v-448)

erent classes,define thosewithin each class, state the exemptionto which the members of the partfeularclass are entitled,and impose a tax upon the amount in excess of the applicableexemptionin fixed percentagesfor various value brackets. These bracketsand percentages vary for each class. Article 7120 provides that "if passing to or for

. . . the use of a brother or sister 

### or a direct llneal desoendantof a brother or slater, of the decedent,the tax shall be three per cent of any value In exoess of ten thousanddollars and not exceeding twenty-fivethousanddollars;

. a ." The ascending rate of tax on other value brackets follows. If brothers and sisters of the half blood do not come within thls class, person" they are relegatedto the category of "any other and embraoedby the terms of Article 7122. #embers of the class established by Article 7122 receivean exemption of $500 and are taxed at 5s on any value in excess of $500 and not exceeding $lO,OOO,wtth stated lncreases in the peroentageof the tax as the value braoket rises. The Departmental Opinion on whiah your 

### ruling was based states that "our Inheritancetax law operates In dipect relation to the laws of descent and distrlbution Fn effect in Texas *" and In holding that a . . .) brother of the half blood was entitled to half the exemptionaccordeda brother of the whole blood, the writer undoubtedly had in mind the provisionsof Article 2573, V.C.S., whloh states that "where the fnherltance is directed to pass to collateralkIndred 

### of the intestate, if part of s.uch collateralbe of the whole blood, and the other part of the half blood only of the intestate, those of the half blood shall InherLt only half SO much as those of the whole blood; e o *" However, it Is obvious that an allowance to 8 half slsl;~3~ of only onehalf'the Exemptionallotted to a'brother or a sister of whole blood, but a computationof the tax at the rates stated for the latter class, as was done in this case, gives a hybrid result for which there can be no posstble justification

under any theory- Moreover,we think It is apparent that the creation of a differentexemption with or without a different tax rate is, in effect, the creation of a differentclass and an act which lies only in the power of the Legislature. A half sister is eitherwithin the class createdby Article 7120 or out of it; and if out of It, must, as aforesaId,be relegatedto "any other person"and the class created by Article 7122.Hon. Oeo. H. Sheppard - Page 

### 3 ,(~-448)

Various authoritieshave defined the ‘terms “brother’

and “sister”as Including "hslfbrother"and “half sister”. Colrpus Juris,Vol. 9; pp. 679, 

### 680, and Vol. 

### 58, PP. 

### 739, ebster*sBlew Intbrtitibtil

Mb.- ;:,“zioiei~&&dth~&WSupreme Court of Texas in 16% terms are general,and those of the half as well as those of the whole blood come striotly within their scope and slgniflcatioti.” Marlow v. fin&, v& 

### 177. See also Watkins et al v’. Blount 94 S Y
.

. Although no Texas case has construedihe te&s as used In the lnherltame tax statutes; we see a’o reason why the same constrwtlon would not be applied. This Is the view of’

the Supreme Court of Colorado,and the opipion containsan excellentsummary and analysis of the authorities

. People V. Elllff, 219 P. 225. The result of Including “halfbrothers”and “half sisters” within~ the classlficatlon of “brothers”

and “sisters” Is moreover in line with the Texas decisionswhioh adhere to the establishedrule requiringthat words in common we when found in a statutemust be given the sense ih which they are ordlnarllyused,T. k P’. Ry Co. v. Railroad’ Commission of Texas, 105 Tex. 393 l;O S.W. 878 Qd with the pronouncements .of our co&s to the efiett that inheritancetaxes are special taxes and that the statutes Imposing same will be construedstrictlyagainst the tax1% power. Lewis, Assesaor.et&v. O’Halr, 130 S.W. (2) 379.
You are thereforeadvised that a half sister properly falls within the olasaifioatlon of Artlole 7120 and Is entitledto the same exemptionand same tax ratea as a sister of whole blood.

The Opinion of this Offioe dated May 

### 24, 1937 addressedto the Hon. Ceoll H. Bird of the Comptroller’s Departmentis overruled

. SUNMARY
In computing Inheritance taxes due by virtue of Ch. 5, Title 122, V.C.S., a half sister should be ~placed in the sa.me

classlficatlonas a sister. Harlov v. King 17 T. 177; People v. Elllff, 219 P. 225,‘and authoritiescited therein. The Opinion of.Hon. Geo. H. Sheppard - Page 4 ,,(V-448)

this Offlae dated May 24,, ,1937 addresaedto the Bon; Cecil H. Bird of the ~ComptPoller~s DepartmentIs overruled.
Youra very truly ATTORREYGERFlRALOFTKXAS

MC/erc/lh 

# Bra- a Mrs. Marietta Creel

Assistant

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