Honorable Robert S. Calvert 

Corn&roller of Public Accounts 

Opinion Ro. C-100 

Capitol Station 

Aust In, Texas 

Dear Rr. Calvert: 

Re: Proper classification 

for inheritance tax 

purposes of adopted 

children of an adopted 

daughter of the decedent. 

We quote the following excerpt from your letter requesting 

the opinion of this office on the above captioned matter: 

“We desire the opinion of your office 

with respect to the proper classification 

for Inheritance tax purposes of the adopted 

children of an adopted daughter of a decedent. 

“B. 0. Lindsey died testate a resident 

of Jasper County, Texas, on December 29, 

1961, and under his last will and testament he devised the entire estate with the 

exception of some small special bequests, 

a life estate to his wife, Mrs. Hattie E. 

Lindsey, and the remainder to Qeorgla Davis 

and Frederick Davis, the children of an 

adopted daughter. ’ 

In this connection you have advised us that the adopted 

daughter’s children were adopted in 1956. For the purposes 

of this opinion It is assumed that all three adoptions were 

consummated in accordance with the adoption statutes then In 

effect. 

If the adopted children of the adopted daughter cannot 

coqe within the provisions of Article 14.02 - Class A - , 

Chapter 14, Title 122A, Tax.-@en., Vernon’s Civil Statutes, 

they must be classified under the less favorable provisions of 

Article 14.06 -mClass E -; suma. Article 14.02 reads in part 

as follows: 

"If passing to or for the use of 

husband or wife, or any direct lineal 

descendant of husband or wife, or any 

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Honorable Robert S. Calvert, Page 2 Opinion No. C-100 

direct lineal descendant or ascendant of 

the decedent, or to legally adopted 

child or children, or any direct lineal 

descendant of adopted child or children 

of the decedent, or to the husband of 

a daughter, or the wife of a son, the 

tax shall be. . . ." 

In view of the decisions of our courts, it might be 

possible to accord this favorable classification to the 

adopted children of the adopted daughter under the provisions 

for “any direct lineal descendant or ascendant of the decedent. ’ However, the more readily applicable provision is 

that for “any direct lineal descendant of adopted child or 

children of the decedent.” 

In order to qualify for the preferred tax treatment 

accorded persons enumerated in Class A, two contrary arguments must be overcome. The first is that Article 14.02 

specifically distit$guishes “direct lineal descendants” from 

“adopted chiltren. Likewise, although the statute specifically places 

cedent " in thi 

.any direct lineal descendant. .of the de- 

&me category with "legally adopt;?d child or 

children” of the decedent, there is no provision for the 

legally adopted child or children of an adopted child of the 

decedent; rather the statute specifically limits its classiflcation to "any direct lineal descendant of adopted child or 

children of the decedent." Thus, on its face the statute 

indicates an intention to treat an adopted child or children 

of an adopted child of a decedent differently from direct 

lineal descendants of such adopted child or children of the 

decedent. 

The second obstacle lies in the fact that ordinarilv 

the class "direct lineal descendants" does not include adopted 

children. State v. Yturria, 109 Tex. 220, 204 S.W. 315 

and Decker v. Williams, 2151 S.W.2d 679 (Tex.Clv.App. 194 A 

1918), 

, error 

ref.} are two inheritance tax cases which recognize this prlnclpie.. 

The Court in the Yturria case said that “direct lineal 

descendant" meant naturamring. Nevertheless the Court 

held that the decedent's legally adopted children came within 

the exemption then provided by Article 7487, R.S. (1911) for 

"direct lineal descendants" of the decedent, because under 

the terms of the adoption statutes, adopted children were 

entitled to the same rights and privileges as natural children 

with respect to that which passed to them upon the death of 

the adoptive parent without Issue of his bqdy. The court 

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Honorable Robert S. Calvert,,Page, 3Opinion Ho. C-100 

pointed out that under the civil law; adopted persons and 

their children were given the same legal status as natural 

children and grandchildren but that the applicable Texas 

adoption statutes specifically limited the rights and privi- ' 

leges of~the adopted child. The Court said at page 316: 

II . . .Our statute, however, defines 

with precision the rights and privileges 

to which a party shall be entitled by 

virtue of adoption. These rights and, 

privileges are, under article 2, R.S.: 

"'All the rights and privileges, 

both in law and equity of a legal heir 

of the party so adopting him. . . .I' 

However, the Court In the Yturria case refused to allow 

an exemption for the property whimed under the will to 

the children of the adopted children, because "we do not feel 

warranted in extending to others the rights and privileges, 

which are confined by the adoption statutes to the adoptive 

person." 204 S.W. at p. 317. 

In the Decker case the Court was concerned with the proper 

classificationmheritance tax purposes of a legally adopted 

daughter of the decedent's first wife who had predeceased him 

and with the classification of two children of the first wife's 

adopted daughter. The~adoption had taken place in 1928. Class 

A classification was accorded the adopted child of the decedent's first wife on the ground that the phrase "direct lineal 

descendant" must be given the same meaning when applied to 

"husband or wife" as when applied to the decedent under the 

prior act in the Yturria case. However, the adopted child's 

children were den-as A classification. It is evident 

that in both the Yturria case and the Decker case favorable 

classification fomitance tax purposes was predicated 

upon the rights and privileges of heirship accorded by the 

adoption statutes in force at the date of the adoption of the 

beneficiary. 

Another case which predicated a determination of proper 

classification for inheritance tax purposes on the rights of 

heirship resulting from adoption is Farrler v. Calvert, 315 S.W.2d 

40 (Tex.Civ.App. 1958, error ref. n.r.e.). In this case the 

court held that the adoptive mother of a deceased child, uho 

had been adopted by a deed of adoption on February 2, 1925, 

could not be regarded as a "dir ct lineal ascendant of the 

decedent" for inheritance tax PF rposes. One of the reasons 

for the court's decision was that under the adoption statutes 

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HonorableRobert S. Calvert, Page 4 Opinion No. C-100 

in effect at the time the decedent was adopted no rights of 

heirship were conferred upon the, adoptive parents. 

The problem we are presently considering is the result 

of the progressive enlargement of rights of adopted children 

under the adoption statutes. The pertinent provisions of 

the present adoption statutes, which were In force at the 

time of the adoption of the beneficiaries in question, read 

as follows: 

"Sec. 9. When a minor child Is 

adopted in accordance with the provisions of this Article, all legal relationship and all rights and duties 

between such child and Its natural 

parents shall cease and determine, 

and such child shall thereafter be 

deemed and held to be for every 

purpose the child of its parent or 

parents by adoption as fully as 

though natural1 born to them in 

lawful d. wed oc . . . For purposes 

of inheritance under the laws of 

descent and distribution such adopted 

child shall be regarded as the child 

of the parent or parents by adoption, 

such adopted child and its descendants 

Inheriting from and through the parent 

or parents by adoption and their kin 

the same as if such child were the 

natural legitimate child of such 

parent or parents by adoption, and 

such parent or parents by adoption 

and their kin inheriting from and 

through such adopted child the same 

as if such child were the natural 

legitimate child of such parent or 

parents by adoption. . . .'I Article 46a, 

V.C.S. 

In this present form, the provision Is significantly 

different from the one quoted on pages 2 and 3 of this opinion 

which was considered in the Yturrla and Decker cases. It 

should be noted that the stanferremhe old statutes 

"as a legal heir of the party so adopting hiP1" has beef ckhaged 

to that of a "naturally born child 'for all purposes. 

Legislature Intended by these changes to broaden the application 

of the adoption statutes beyond the restriction emphasized in 

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Honorable Robert S. Calvert, Page 5 

the Decker case, 

adopmild." 

viz. "as between the adopting parents and the 

Opinion No, C-100 

In view of the foregoing, the adopted children in 

question have become, for all purposes of Inheritance, the 

natural children of the adopting parents. Since the decisions 

which we have previously summarized in connection with our 

Inheritance tax statutes have accorded favorable classlfication for Inheritance tax purposes based on the rights of heirahip > we can only conclude that the children in this case 

should be classified under Class A. 

SUMMA R,Y 

The adopted children of an adopted daughter 

of a decedent are entitled to Class A classlflcatlon 

under the provisions of Article 14.02, V.C.S. 

Yours very truly, 

WAGGONER CARR 

Attorney Qeneral of Texas 

BY 

alLLd&- 

'R Qordon Appletian 

Assistant Attorney Generals 

APPROVED: 

OPINION COMMITTEE: 

W. V. Geppert, Chairman 

J. H. Broadhurst 

Ernest Fortenberry 

W. E. Allen 

J. S. Bracewell 

APPROVED FORTHE~ATTORNEXQENERAL 

By: Stanton Stone 

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