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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, 1951. 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.othe 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.11of 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 71I8 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