. ‘ 

E ORNEY GENERAL 

OP~EXAS 

May 20, 1959 

Honorable Robert S. Calvert Opinion No. W-626 

Comptroller of Public Accounts 

Capitol Station Re: Classification for 

Austin, Texas inheritance tax 

purposes of alleged 

Dear Mr. Calvert: adopted child. 

You have requested that we advise you as to 

whether Marian Jean Dooley Lee (hereafter referred to as 

Marian) should be classified for inheritance tax purposes 

under the provision of Article 7118--Class A, Vernon's 

Civil Statutes, for a "legally adopted child. . .of the 

decedent" or whether she should be classified under 

Article 7122--Class E, V.C.S., which provides the appropriate class for all persons not specifically covered by 

special classification provisions. 

On July 5, 1917, the New York Foundling Home 

placed Marian who was then two and one-half years old in 

the home of Leslie B. Dooley and his wife, Katherine Marie 

Dooley (hereafter referred to as Decedent). Marian remained with the Dooleys until the time of her marriage. 

Prior to 1936, the Dooleys made no attempt tu 

adopt Marian but held her out to be an adopted daughter and 

so considered her. On December 2, 1936, Mr. Dooley and the 

Decedent executed a deed of adoption which was duly acknowledged and recorded and which stated that they by said instrument adopted~ Marian "a child of parents unknown to us, 

now twenty years of age (and who has continually resided 

with us since July 5, 1917) as our legal heir, hereby, c,onferring on said Marian Jean Dooley all the rights and privileges, both in law and equity, appertaining to this act of 

adoption for all purposes retroactive and to be effectual 

from the 5th day of July, 1917." The Dooley,s were advised 

by, their attorney that upon filing of the deed of adoption 

in the Deed Records of Dallas County, Texas, Marian had been 

legally~ adopted by them. 

The Deced~ent died testate March 14, 1956. Urder 

the terms of her will she devised certain properties to 

Marian. Throughout the will Marian was referred to as her 

"foster daughter." 
, . 

Honorable Robert S. Calvert, Page 2 (Opinion No. ~~-626) 

We will first consider whether under the above 

recited facts, Marlan was the “legally adopted child” of 

the Decedent. 

From the time the first adoption st 

acted in Texas in 18501 until the Act of 1931 5 tute was enrepealed 

all adoption laws then in effect, adoption was accomplished 

by the means of a written instrument, in the nature of a 

deed, which was signed by the adopting person and authenticated or acknowledged as deeds are required to be. The 

deed was required to be filed in the office of the county 

clerk, such filing being essential to the execution of the 

instrument and constituting the act of adoption. 1 Tex. 

Jur.Supp. 137, 138, Adoption, Sets. 15, 16. The Act of 

1931 repealed all adoption laws then in effect and substltuted as a complete method of adoption a r.adically different 

procedure. 1 Tex.Jur.Supp. 134, 135, Adoption, Sec. 8. 

The new act and its later amendments make the act of adoption a judicial function. 1 Tex.Jur.Supp. 141, Adoption, 

Sec. 21. 

Various acts pertaining to the validation of 

adoptions have been passed by the Legislature. Acts 1934, 

zi;d Leg., 2nd C.S., p. 93, ch. 39, B 1; Acts 1937, 45th 

1324, ch. 490, 8 2; Acts 1947, 50th Leg., p. 1016, 

ch.‘&3t; 8 2; Acts 1951, 52nd Leg., p. 388, ch. 249, 8 4. 

However, these validation acts apply to adoption 

papers signed prior to August 21, 1931, and to adoption decrees theretofore entered by the District Court in Texas 

based on proceedings which conformed to the adoption statutes 

“as thereafter or hereby amended.” Since the purported 

adoption deed in the instant case was executed at a time 1 

when the only method for accomplishing adoption was the judicial method, the deed itself amounts to a nullity, and 

there is nothing to validate. Therefore, at the date of the 

death of the Decedent, Marian was not her legally adopted 

child. 

Subsequent to the Decedent’ 8 death, Marian instituted suit in the 1Olst Judicial District Court of Dallas 

County, Texas, for a declaratory judgment naming as defendants her foster father and all the heirs of the Decedent 

and next of kin of Mr. Dooley. In this suit, she sued to 

1 

Pas. Dig. Art. 31. 

2 Acts 1931, 42nd Leg., p. 300, ch. 177. 

. 
Honorable Robert S. Calvert, Page 3 (opinion No. ~~-626) 

have herself declared the adopted child of Mr. Dooley and 

the Decedent, Judgment was rendered in this suit on February 

20, 1959. In the judgment the court made certain Findings 

of Fact and Conclusions of Law. Incorporated in the Findings 

of Fact are the facts previously stated. The court also 

found as a fact that Marian was "held out to be the adopted 

daughter" of the Decedent and her husband and that the !'Deed 

of Adoption was intended to be merely a confirmation of 

their previous act of equitable adoption. . ." 

The cqurt'.concluded as a matter of law that "By 

such adoption procedure and by, holding out to the world that 

the said Marian. . . was their adopted daughter, the said 

Leslie B. Dooley and his said wife have equitabl adopted 

said Marian. . .' (Emphasis supplied throug 'd ou However 

the court further concluded that "The said Marian. . .is i; 

legal effect the legally adopted child of Leslie B. Dooley, 

andhis wife,. . .and was the legally adopted child of 

the~~said Katherine Marie Dooley and Leslie B. Dooley at the 

time of the death of the said Katherine Marie Dooley." 

On the basis of its Findings of Fact and Conclusions of Law, the court decreed that certain questions contained in Plaintiff's Original Petition be answered in the 

following way. 

Question (2) ", . .did not Leslie B. Dooley and his 

said wife in legal effect adopt Marian Jean Dooley, Lee bye 

their act of acceptingcustody of the said Marian. . .in considering and treating her always as their adopted daughter, 

and in holding out to the world that she was in fact their 

adopted daughter?" Yes. 

Questions (3) and (4) pertained to the Dooley's 

intention in executing the adoption deed and the effect of 

such execution. The court concluded that in executing such 

papers the parties intended to confirm the previous act of 

adoption and that such was the effect of said execution. 

In response to Question (5), the court concluded 

that Dooley and his wife intended to take Marian into their 

family and give her the rights, privileges and duties of a 

child and heir and that said child "in legal effect" had "the 

rights, privileges and duties of a child and heir." 

In response to Questions (6) and (7), the judgment 

affirms the fact that Marian had been considered by all 

heirs and next of kin "to be in effect the le all 

adopted daughter of Lesne7.a =d, wand w 

that Marian "consmered herself to be in legal effect the 

legally adopted daughter" of Dooley and his-wife. 
Honorable Robert S. Calvert, Page 4 (Opinion No. ~~-626) 

In response to Question (lo), the court found that 

the attempted compliance with the adoption laws coupled with 

holding Marian out to the world as their adopted daughter 

was followed "by reliance thereon and performance thereto" 

by Marian. 

In response to Question (ll), the court stated 

that it would be inequitable for Dooley and his wife and 

their privies to deny the adoption of Marian and her status 

as an adopted daughter. 

However, Question (12) reads as follows: "Is 

Marian Jean Dooley Lee 

child of Leslie B. 

answered this question in the affirmative. 

We will now consider whether this judgment effectuates Class A classification for Marian. It is evident ~, 

from the foregoing summation of the judgment that certain 

portions thereof are inconsistent. The judgment might well 

be construed as a decree tnat Marian was a child adopted by 

estoppel. On the other hand, the court's conclusion that 

Marian was the "legally" adopted child of Dooley and the Decedent is inconsistent with a decree of adoption b?? estoppel. 

A decree of adoption by estorpel establishes the property 

rights of the child,adopted by estoppel in so far as the 

adoptive parents and their privies are concerned. Such decrees do not purport to change the status of a child adopted 

by estoppel. Since adoption was unknown to the common law, 

the status of an adopted child can only be created by compliamth the controlling adoption statutes. 1 Tex.Jur. 

supp. 132, Adoption, Sec. 3. Thus if the judgment decrees 

that Marian was a child adopted by estoppel, she cannot be 

classified under the Class A provision for a "legally~ 

adopted child. . .of the decedent" in view of the per curiam 

opinion of the Supreme Court in Johnston v. Calvert, 

Tex. -, 305 S.W. 2d 778 (1957). 

The Court of Civil Appeals in Calvert v. Johnston, 

304 S.W. 2d 394 (1957), held that the alleged adopted son 

had failed to prove an adoption by estoppel and that he was 

therefore properly classified for inheritance tax purposes 

under Class E--Article 7122. Mr. Justice Hughes concurred 

solely on the ground that the alleged adopted child was not 

a "legally adopted child. . .of the decedent" within the 

meaning of Article 7118, Class A. 

The Supreme Court refused the Application for Writ 

of Error with the notation, "no reversable error." We quote 

the Court's per curiam opinion which reads as follows: 
. . 

Honorable Robert S. Calvert; Page 5 (Opinion No. ~~-626) 

"We agree with the view expressed by 

Mr. Justice Hughes DO4 S.W. 2d 398 that 

Grant Llndsey~, Jr. was not a 'lega < ly 

adopted child' within the meaning of Article 7118, Class A, Vernon's Ann. Tex. Stats. 

See Wooster v. Iowa State Tax Commission, 

230 Iowa 797, 298 N.W. 922, 141 A.L.R. 1298." 

However, if the effect of the judgment of the court 

is to decree that Marian had been legally adopted and had 

the status of a legally adopted child of the Decedent, is 

the State bound by this decree to place Marian within the 

Class A classification for a "legally adopted child. . .of 

the decedent" for inheritance tax purposes7 

As a general rule, a judgment determining personal 

status is conclusive in subsequent litigation involving the 

same issue. 50 C.J.S. 224, Jud,gments, Set, 734. This is so 

because if a proceeding is designed primarily to determine 

status it is ordinarily a proceeding in rem and conclusive as 

a judgment in rem upon every person interested in or affected 

by the status thus adjudicated. 3 Freeman on Judgments (5th 

Ed., 1925) 3145, 3146, Sec. 1534. However, we quote the following excerpt from the above cited section of Freeman: 

.But in order that such a proceeding shall be 

one'in rem it Is generally, if not always, necessary that it should contemplate and be intended to 

create or effect a change in the legal status of 

the person in question. It is not enough that status be incidentally, even though necessarily, passed 

upon in proceedings which are purely personal In 

their nature or which are in rem as to some other 

aspect of the status of such person. In other words, 

an adjudication which creates or changes legal status 

is in rem but one which finds or adjudicates the past 

or present existence of a particular status is not 

in that aspect a judgment in rem but must be treated 

like any other judgment inter partes." 

Since it is evident that' the judgment in the instant case did not purport to create or change Marian's legal 

status but rather was an adjudication of her past and present status, it is doubtful, to say the least, that it should 

be treated as a judgment in rem but rather it should be 

treated like any other judgment inter partes with the result 

that the State, not being a party, would not be bound. 

Even if this distinction were not recognized, there 

is authority to the effect that "A judgment In rem, while 
Honorable Robert S. Calvert, Page 6 (Opinion No. ~~-626) 

binding and conclusive on all private rights, does not conclude the State, its public agencies and mandatories, unless 

the law authorizing the proceedings contemplated such a result, since the State without its consent, express or implied, is not subject to suit." 3 Freeman on Judgments, 5th 

Ed., 1925, 3115, Sec. 1527; 1 Freeman on Judgments, 1088, 

1089, Sec. 506; 26 Tex. Jur. 209, Judgments, Sec. 551. It 

was suggested in Prairie Oil and Gas Co. v. State, 214 S.W. 

363 (Tex.Civ.App. 1919) modified,other points (Com.App.), 

231 S.W. 1088 (1921), &at any statute which would make a 

judgment rendered in a suit to which the State was not a party 

binding upon the State would be violative of the due process 

clause provisions of both the State and Federal constitutions. 

At least two courts have held that the State in 

collectina inheritance taxes is not bound by nrior ad.iudications tz which it was not a party. In Mcbokgald v.~"First 

Federal Trust Co., usbdnd 

-- 

199 P. 11 (Cal.Sup. 1921) the h 

conveyedcertain community property without the wife's consent.. After the husband's death the wife successfully~ sued 

to recover her community interest l!hip"? under California law 

she obtained as the heir of the husband; therefore, the 

property in question was liable for an inheritance tax. At 

page 12 the court said: 

"The right of the state of Califo?nia to an inheritance tax was not litigated in that proceeding, the 

state was not a party thereto, and the judgment in 

favor of the wife has no bearing upon the right of 

the state of California tJ recover an inheritance 

tax except as it shows tnat the widow has successfully maintained her right to succeed to the community property awarded to her by the judgment." 

In Hasbrouck v. Martin, 183 A. 735 (Perogative 

Court of N.J. 1936), the decedent had made certain bank deposits and the ownership of the deposits was litigated after 

her death. In suing to collect the inheritance taxes, the 

tax commissioner did not dispute the correctness of the judgment adjudicating title. At page 737 the court said: 

"The State is of course..not bound in this proceeding 

by the result in the chancery suit to which it was 

in nowise a party. Cf. In re Dorrance's Estate, 

115 N.J. Eq. 268, at page 272, 170 A. 601; affirmed 

Dorrance v. Martin, 176 A. 902, 13 N.J. Misc. 168; 

In re Fischer's Estate, 1.18 N.J. Eq. 599, at page 

605, 180 A. 633; Freudenrich v. Mayor, etc., Fairview, 114 N.J. Law, 290, 176 ~~162. 
Honorable Robert S. Calvert, Page 7 (Opinion No. ~~-626) 

"It would therefore have been open to the commissioner in this tax proceeding to find, if the 

evidence before him so indicated, that no valid 

trusts had been created, He made no such finding, 

however, and makes no such contention on this 

appeal; he concedes that valid trusts were created; 

and the evidence in the record leads to the same 

conclusion." 

For the reasons stated in these opinions as well 

as those heretofore given we are of the opinion that Marian 

cannot be given Class A classification as a "legally adopted 

child" of the Decedent. You are therefore advised that she 

must be classified for inheritance tax purposes under Class E. 

SUMMARY 

Where a foster daughter of the Decedent 

was not adopted in accordance with the controlling adoption statutes, a judgment rendered 

subsequent to Decedent's death declaring said 

foster child to be the legally adopted child of 

the Decedent and Decedent's child adopted by 

estoppel does not bind the State in classifying 

the alleged adopted child for inheritance tax 

purposes. Said child cannot be classified under 

Article 7118, V.C.S., as a "legally adopted 

child. of the decedent" but must be classified under Article 7122, V.C.S. 

Yours very truly, 

WILL WILSON 

Attorney General 

MMP:bct 

APPROVED: 

OPINION COMMITTEE: Assistant 

Geo. P. Blackburn, Chairman 

William E. Allen 

Henry (3. Braswell 

Lawrence Jones 

Raymond V. Loftin, Jr. 

J. Milton Richardson 

REVIEWED FOR THE ATTORNEY GENERAL 

By: W. V. Geppert