. >:1 

Hon. Robert S. Calvert Opinion No. WW-9 

Comptroller of Public Accounts 

Capitol Station Re: Classification for 

Austin, Texas inheritance tax purposes 

of a deceased daughter’s 

former husband who had 

~remarried and been 

divorced prior to decedent’s 

Dear Mr. Calvert: death. 

You have advised us of the ‘following facts. Jessica S. 

Pike died on March 16, 1956. Under the terms of her will, she 

devised and bequeathed all of her estate to her daughter, Phyllis 

Pike Cahn and to David D. Cahn, or the survivor of them. At the 

time of the execution of the will, David D. Cahn was married to 

Phyll.is Pike C&n, who died on September 2, 195 1. David D. Cahn 

remarried on November 5, 1954, and was divorced from his second 

wife on June 23, 1955. He was unmarried on the date of death of 

Jessica Pike Cahn. 

You state that the attorneys for the estate have taken the 

position that David D. Cahn should be classified for inheritance 

tax purposes under Class A - Article 7118, Vernon’s Civil Statutes, 

and request that we advise you as to the proper classification. If 

Mr. Cahn cannot be classified under Class A, he will necessarily 

be classified under Class E - Article 7122, V.C.S. 

The pertinent provisions of Article 7118, read as 

“If passing to or for the use of . . . the husband 

of a daughter, or the wife of a son, the tax shall be 

” 

. . . 

follows: 

Mr. Calm is thus srcking to come wltlrin thr Class-A 

group provirlrd for a “husband of a daughter. . .” This provision 

and the roroll,ary provision for “wife of a son” hove been construed 

by our courts. 

In Lewis v. O’JIair, 130 S.W.Ld 379 (Tcx.Civ.App. 1939) 

the court Jwld that the surviving wife or widow of a deceased son 

of thr decedent came within the provision above quoted for a “wife 

of a son”. We quote the following excerpt from page 379: 
Hon. Rob,: t S. Calve r? page 2 (WW-9) 

.~ 

“Appellec, Mrs. Hattie O’Halr, the party asserting the right io be placed in Class A, is the surviving 

wife (,not having remarried) of Will O’Hair, .who died in 

1919.” [Emphasis suppllex} 

In Calvcct v. Fisher, 259 S.W.2d 944 !Tex.Civ.App., 1953, 

error ref.) !~h~%~~~~~erned wi‘h ihr following facts. The 

decedent’s daughter,: wlio predeceancd hrr, had been married to one 

of the bcnrliciarics nomcad in ihc’will. Subsequent t.o the daughter’s 

death and prior to the death of 1.1~ drc&ien!.. f.hr beneficiary had 

remarried and was married at the dai.k* o.! ihc deat.11 of t.he decedrnt. 

The court held tha.! !.hr hzncti.iciary should be classified 

for inheritance tax purposes under Class E rather ihan under Class 

A. At page 045 the court said: 

“The sole question p-rscn!.ed by rh~s appeal 

is: Did f.he tart l.hat oppellec remarried during the 

lifetime of the testatrix and alter the deaih of his 

wite Hazel Amanda dr.sttoy his sta+us as ‘the 

husband of a daughirx.’ of the tesfaf:r-ix?’ 

In holding thai. the status of. ‘hrisband of a daughter’ was 

deskoyed by remartiagc- during the decrdeni’s lifeiimc, the court 

pointed out tzhat bot.h ihe O’Hair case and Johnson v. Davis, 198 

--. 

S;W.2d IL9 (7cx.Civ.App.~&~~ CIVLV reI..,n.r.e.) recognize Lhat 

Articlc 71 I8 uses the words ‘rrife- and “h.usband’ ,in the scnsc of 

surviving wiI’c. or huskand, .vidcw or suitlower. The court rkasoncd ’ 

fha? ‘he Ix, rm -‘wiclowcr- she ;rld ha: given ihe sense in whikh it is 

ordinar ilk used and tha!. the ac.cep+d meaning of the word is “a 

man who has lost. his wile by dcxai.1~ and has not. remarried.” 

We think t.hat ihe Calveri cabe is con!.rolling since the 

- v--e. 

Sllpreme Court refuse-d wrii. or cr7.0~‘. 
Hon. Robert S. Calvert, page 3 (WW-9) 

decedent’s death, should be classified 

f~or inheritance tax purposes under Class E - 

Article 7122, V.C.S. Calvert v. Fisher, 259 

S.W.2d 944 (Tex.Civ.App., 1953, error ref.). 

.’ 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

By &&/L&/a P2 d+&+?7& @- 

Marietta McGregor Payne 

Assist.ant 

MMP:cs 

APPROVED: 

OPINION COMMITTEE 

H. Grady Chandler, Chairman