. ‘



### E ORNEY GENERAL
OP~EXAS

May20,1959

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.

Youhave requested that weadvise 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.

OnJuly 5, 1917, the NewYork Foundling Home placed Marian whowasthen two and one-half years old in the homeof Leslie B. Dooley andhis 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 madenoattempt tu adopt Marian but held her out to be anadopted daughter and so considered her. OnDecember 2, 1936, Mr. Dooley and the Decedent executed adeed of adoption which was duly acknowledged and recorded andwhich stated that they by said instrument adopted~Marian "a child of parents unknown to us, nowtwenty years of age (and whohas continually resided with us since July 

### 5,1917) as our legal heir, hereby, c,onferring on said Marian Jean Dooley all the rights andprivileges, both in law and equity, appertaining to this act of adoption for all purposes retroactive andto be effectual from the 5th day of July, 1917." TheDooley,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)

Wewill first consider whether under the above recited facts, Marlan was the “legally adopted child” of the Decedent.

Fromthe time the first adoption st acted 

### in Texas in 

### 18501until the Act of 19315tute wasenrepealed all adoption laws then in effect, adoption wasaccomplished by the means of awritten instrument, in the nature of a deed, which was signed bythe 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. 1Tex. Jur.Supp. 

### 137,138,Adoption, Sets. 

### 15,16. TheAct of 1931 repealed all adoption laws then in effect and substltuted as acomplete method of adoption ar.adically different procedure. 1Tex.Jur.Supp. 

### 134,135,Adoption, Sec. 8. The newact and its later amendments makethe act of adoption ajudicial function. 1Tex.Jur.Supp. 141, Adoption, Sec. 21.
Various acts pertaining to the validation of adoptions have been passed bythe Legislature. Acts 

### 1934, zi;dLeg., 2nd C.S., p. 93, ch. 39, B1; Acts 1937, 45th

1324, ch. 490, 82; Acts 1947, 50th Leg., p. 

### 1016, ch.‘&3t; 82; Acts 1951, 52nd Leg., p. 

### 388,ch. 249, 8

### 4.

However, these validation acts apply to adoption papers signed prior to August 21, 1931, andto adoption decrees theretofore entered bythe 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 

### atime 1 whenthe only method for accomplishing adoption wasthe judicial method, the deed itself amounts to anullity, and there is nothing to validate. Therefore, at the date of the death of the Decedent, Marian wasnot her legally adopted child. Subsequent to the Decedent’ 8death, Marian instituted suit in the 1Olst Judicial District Court of Dallas County, Texas, for adeclaratory judgment naming as defendants her foster father and all the heirs of the Decedent andnext of kin of Mr. Dooley. In this suit, she sued to



### 1Pas. Dig. Art. 

### 31. 2Acts 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 wasrendered in this suit onFebruary 20, 

### 1959. In the judgment the court madecertain 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 andher husband and that the !'Deed of Adoption wasintended to be merely a confirmation of their previous act of equitable adoption.

. ."

The cqurt'.concluded as amatter of law that "By such adoption procedure andby,holding out to the world that the said Marian.

. .was their adopted daughter, the said Leslie B. Dooley andhis said wife have equitabl adopted said Marian.

. .' (Emphasis supplied throug ou 'd 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 andLeslie B. Dooley at the time of the death of the said Katherine Marie Dooley."

Onthe 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 andhis 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, andin 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 andhis wife intended to take Marian into their family and give her the rights, privileges and duties of a child andheir and that said child "in legal effect" had "the rights, privileges and duties of achild andheir."

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, w wand that Marian "consmered herself to be in legal effect the legally adopted daughter" of Dooley andhis-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 andperformance thereto" byMarian.
In response to Question (ll), the court stated that it would be inequitable for Dooley andhis wife and their privies to deny the adoption of Marian andher status as anadopted daughter.

However, Question (12) reads as follows: "Is Marian Jean Dooley Lee child of Leslie B. answered this question in the affirmative.

Wewill nowconsider whether this judgment effectuates Class Aclassification for Marian. It is evident ~, from the foregoing summation of the judgment that certain portions thereof are inconsistent. Thejudgment might well be construed as adecree tnat Marian wasachild adopted by estoppel. Onthe other hand, the court's conclusion that Marian was the "legally" adopted child of Dooley and

### the Decedent is inconsistent with adecree of adoption b??estoppel. Adecree of adoption by estorpel establishes the property rights of the child,adopted by estoppel 

### in so far as the adoptive parents andtheir privies are concerned. Such decrees donot purport to change the status of a child adopted by estoppel. Since adoption wasunknown to the commonlaw, the status of anadopted child can only be created by compliamth the controlling adoption statutes. 1Tex.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 Aprovision for a "legally~ adopted child.

. .of the decedent" in view of the per curiam opinion of the Supreme Court in Johnston v. Calvert, Tex. -, 

### 305S.W. 2d

### 778(1957).

The Court of Civil Appeals in Calvert v. Johnston, 

### 304S.W. 2d 394 (1957), held that the alleged adopted son had failed to prove anadoption by estoppel and that he was therefore properly classified for inheritance tax purposes under Class E--Article 7122. Mr. Justice Hughes concurred solely onthe ground that the alleged adopted child wasnot 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." Wequote the Court's per curiam opinion which reads as follows:. .

Honorable Robert S. Calvert; Page 

### 5(Opinion No. 

### ~~-626)

"Weagree with the view expressed by Mr. Justice Hughes DO4 S.W. 2d 398 that Grant Llndsey~, Jr. wasnot 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, 

### 230Iowa 

### 797,298N.W.922,141A.L.R.1298." However, if the effect of the judgment of the court is to decree that Marian had been legally adopted andhad the status of alegally adopted child of the Decedent, is the State bound by this decree to place Marian within the Class Aclassification for a "legally adopted child.

. .of the decedent" for inheritance tax purposes7

Asageneral rule, ajudgment determining personal status is conclusive in subsequent litigation involving the sameissue. 

### 50C.J.S. 224, Jud,gments, Set, 

### 734. This is so because if aproceeding is designed primarily to determine status it is ordinarily aproceeding in remand conclusive as ajudgment in remupon every person interested in or affected bythe status thus adjudicated. 

### 3Freeman on Judgments (5th Ed., 1925) 

### 3145,3146,Sec. 

### 1534. However, wequote the following excerpt from the above cited section of Freeman:

.But in order that such aproceeding shall be one'in remit Is generally, if not always, necessary that it should contemplate and be intended to create or effect achange 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 remas to someother aspect of the status of such person. In other words, anadjudication which creates or changes legal status is in rem but one which finds or adjudicates the past or present existence of aparticular status is not in that aspect ajudgment in rembut 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 anadjudication of her past andpresent status, it is doubtful, to say the least, that it should be treated as ajudgment in rembut rather it should be treated like any other judgment inter partes with the result that the State, not being aparty, would not be bound.

Even if this distinction were not recognized, there is authority to the effect that "Ajudgment In rem, whileHonorable Robert S. Calvert, Page 

### 6(Opinion No. 

### ~~-626)

binding and conclusive on all private rights, does not conclude the State, its public agencies andmandatories, unless the law authorizing the proceedings contemplated such aresult, since the State without its consent, express or implied, is not subject to suit." 

### 3Freeman onJudgments, 5th Ed., 1925, 

### 3115,Sec. 1527; 1Freeman onJudgments, 

### 1088, 1089,Sec. 

### 506;26Tex. Jur. 209, Judgments, Sec. 

### 551. It was suggested in Prairie Oil and Gas Co. v. State, 

### 214S.W. 

### 363(Tex.Civ.App. 1919) modified,other points (Com.App.), 231 S.W. 

### 1088(1921), &at any statute which would makea judgment rendered in a suit to which the State wasnot aparty 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 bynrior ad.iudications tz which it was not aparty. 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 aninheritance tax. At page 12the court said:

"The right of the state of Califo?nia to aninheritance tax was not litigated in that proceeding, the state was not aparty thereto, and the judgment in favor of the wife has nobearing upon the right of the state of California tJ recover aninheritance 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, 

### 183A. 

### 735(Perogative Court of N.J. 1936), the decedent hadmadecertain bank deposits andthe 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 

### 737the court said:

"The State is of course..not bound in this proceeding bythe result in the chancery suit to which it was in nowise aparty. Cf. In re Dorrance's Estate, 115N.J. Eq. 

### 268,at page 272, 

### 170A. 

### 601;affirmed Dorrance v. Martin, 

### 176A. 902, 

### 13N.J.Misc.168; In re Fischer's Estate, 

### 1.18 N.J. Eq. 599, at page 

### 605,180A. 

### 633;Freudenrich v. Mayor, etc., Fairview, 

### 114N.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 novalid trusts had been created, Hemadeno such finding, however, andmakes no such contention on this appeal; he concedes that valid trusts were created; andthe evidence in the record leads to the same conclusion."
For the reasons stated in these opinions as well as those heretofore given weare of the opinion that Marian cannot be given Class Aclassification 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 Wherea foster daughter of the Decedent was not adopted in accordance with the controlling adoption statutes, ajudgment rendered subsequent to Decedent's death declaring said foster child to be the legally adopted child of the Decedent andDecedent'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,
WILLWILSON Attorney General MMP:bct APPROVED:
OPINIONCOMMITTEE: Assistant Geo. P. Blackburn, Chairman William E. Allen Henry (3.Braswell Lawrence Jones RaymondV. Loftin, Jr. J. Milton Richardson
REVIEWED

FORTHEATTORNEY GENERAL By: W.V. Geppert