THEATTORNEY GENERAL 

OF TEXAS 

PRICE DANIEL 

ATTORNEY GENERAL 

Aun~l~ 1% 33~~~s .: 

October 21, 1948 

Hon. Geo. H. Sheppard Opinion No. V-704 

Comptroller of Public Accounts 

Austin, Texas Re: Imposition of inhcriCance tax where community estate completcly disposed of by joint 

will’and trust tnstrument at death of husband 

Dear Sir: 

You have requested an opinion of this office as to whether an inheritance tax is due by reason of the receipt of certain 

funds from the community estate of T. G. Hendrick, deceased, 

and his surviving wife by the Baptist Founda.tion of Texas as 

trustee. The facts of the case as disclosed by your file and the 

brief submitted by the attorney for the executor, The Fort Worth 

National Bank of Fort Worth, Texas, are as follows: 

On January 22, 1929, T. G. Hendrick and Ida Hendrick, 

husband and wife, executed a joint and mutual will in the opening 

paragraph of which they declared that 

“We, T. G. Hendrick and Ida Hendrick, husband 

and wife, . . . having mutually agreed and contracted 

with each other as to the disposition to be made of all 

of the property owned by us, as hereinafter .set out 

do Make, Declare and Publish this as our Joint 

add’Mutua1 Last Will and Testament, and the last will 

and testament of each of us . . , 

“We first state that all of the property of every 

kind and character now owned as well as any that may 

hereafter be owned by us, or in which tither of us may 

have an interest, is community property owned by us 

since our marriage and owned one-half by each of us, 

whether the apparent title to such property is in the 

one or the other or in both of us, having earned the 

property together we desire to dispose of it by joint 

will in accordance with the terms hereof, and each of 

us hereby solemnly pledges his and her faith to the 

other that he or she will not alter or change or attempt to alter or change such disposition of the property, unless by proper instrument likewise jointly 
’ . 

Ho& Geo. ?I. Sheppard, Page 2 (v-704) 

signed by us, and particularly that the survivor of 

u6 will not make or attempt to make any change in 

such disposition.” ’ 

In the twelve succeeding pages of the will various speaific btque$ts are’made and numerous trusts set up. These provisions ara not material to your inquiry since from time to time 

various codicils were executed, eleven in all, which resulted in 

an almost complete departure from the provisions of the original 

imaumsnt. 

The will provided that if the death of Ida Hendrick occurred before the death of T. G. Hendrick, T. G. Hendrick as 

trustee, without necessity of giving bond, was to remain in possession of all the interests of Ida Hendrick and the property owned by herself and her husband, except the devises to Ida Hendrick’s 

nieces, with full power and authority to dispose of all or any part 

of such property; and at his death khe property then on hand, representing the corpus of the trust funds, wa$ qftcr the payment of 

individual legacies, inheritance, estate and othe.r taxes, and 6xpenses of administration to pass to and under control of named 

trustees for the different uses and pu$po$es provided in the WM. 

However, if T. G. Hendrick died before Ida Hendrick, the rights, 

powers and duties of the trustees were, to vest immediately in 

them subject alone to the right of Ida Hendrick to receive $l,OOO.OO 

or more per month during the remainder of her life from a trust 

of $500,000.00 to be established as specifically provided in the 

fifth codicil of the will. 

In the sixth codicil to the will, Item First reads as follows: 

“Reference is here made to the fifth codicil to 

our will executed by us on April 19, 1934. In Item 

Firrf thereof we instructed our executor to sell from 

our property a,nd set apart bonds, securities and/or 

other items of property then of the reasonable value 

of $500,000.00 before any of the trusts provided for 

by us art set up and before any of the devises by individuals are paid. It is our purpose and intention, 

and we here now so will and direct, that said $500,- 

000,00 of property and securities shall be appropriated from , . . Ida Hendrick’s one-half interest in our 

properties, if such one-half interest shall , , . be sufficient for the purpose, but if not then all of her onehalf interest shall be appropriated and a sufficient amount . , . from T. G. Hendrick% one-half interest 

shall be added thereto to make up the total of $500,- 

000.00 . * .” 
Hon. Gee. H. Sheppard, Page 3 (V-704) 

In this same codicil Ida Hendrick covenanted and agreed 

with T. G. Hendrick and with all of said other deviates, both the 

individuals and the bank trustee, that in the event of the death of 

T. G. Hendrick before herself she would Immediately after his 

death execute all instruments and conveyances thought by the 

trustee to be necessary or advisable to effectuate the payment 

of the devises to other individuals and the delivery and vesting 

of such property in the trustee of all property in such trust 

created by the will. 

Item Second of the sixth codicil provided that 

“In the event the death of T. G. Hendrick occurs 

before that of Ida Hendrick, the latter shall continue 

during the remainder of her life to have the free possession and use of the lot and the improvements known 

as 802 Orange Street in the city of Abilene, Texas, . . . 

which property is sometimes occupied and used by us 

for residential purposes, and she shall also have such 

free use and possession of all furniture and fixtures 

and other personal property used by us in connection 

with such premises, including the family automobile 

so used at the time; and in such event, we direct that 

our executor and thereafter our bank trustee, from 

funds belonging to the trust created for the establishment and maintenance of the ‘T. G. and Ida Hendrick 

Home’ shall pay all taxes that may accrue against 

said real and personal property, pay all insurance 

premiums on policies relating thereto and keep the 

premises and estate in good care all without charge 

or expense to Ida Handrick.” 

These provisions covered everything to be retained by 

Ida Hendrick in the event T. G. Hendrick predeceased her. 

In the seventh codicil Item Second again refers to the 

$500,000.00 trust fund to be established in the event Ida Hendrick survived T. G. Hendrick out of her one-half of the community property (or out of the joint property if her community 

one-half was insufficient). Said item confirmed the creation of 

the trust and devised and bequeathed same to the Fort Worth 

National Bank as trustee. It was provided that at the death of 

Ida Hendrick title to the property and assets belonging to such 

trust at the time of her death were to remain in the Fort Worth 

National Bank as trustee to be used by it in setting up other 

trusts provided for in the will. 

In the eleventh and last codicil to the will the various 

trusts here involved were established. By its terms $l,OOO,OOO..OO 
Hon. Gee. H. Sheppard, Page 4 (V-704) 

was devised to the Baptist Foundation of Texas as trustee to 

be held, managed and the income therefrom disposed of for 

twenty-one years as specifically provided: 10% thereof to be 

used for “the aid and assistance of young men being educated 

for the ministry at the Southwest Baptist Theological Seminary, of Fort Worth, Texas”; 10% thereof to be used by the 

Relief and Annuity Board of the Southern Bapti$t Convantion 

in the “aid of old worn out Baptist preachers’*; 10% thereof 

to be used by the Baptist General Convention of Texas “in 

its ordinary Foreign MisGions Work”; 40% thereof to be used 

by the Foreign Mission Board of the Southern Baptist Convention “for relief work , . . and caring for the medical needs and 

religious welfrre of needy people anywhere in the world; or, 

at the discretion of the Executive Board of the Baptist General 

Convention of Texas, part of these funds may be so used by 

other agencies under its jurisdiction”; 30% thereof to be used 

by the Home Mission Board of the Southern Baptist Convention 

“for relief work . . . and ruligiaus welfare of needy people in 

the Homeland; or, at the discretion d the Executive Board of 

t&o Ba@i$t General Convention of Texas, part of these funds 

may be so used by other agonciea tw,der its jurisdiction.” 

Twenty-one year0 dter this trust became effective its corpus 

.ig to be paid to the BaptMt General Convention of Texas to brt, 

devoted by it to the five eharitie$ abuve mentioned, on the game 

pro rata basis above cot out, 80 that the assets of the trust will 

be exhausted ten years after such distribution begins. 

Following t&e death of T. (P. Hendrick on July 8, 1946, 

the will and all of the codicils thereto, forming a 60-page instrument, was admit@8 to probate on July 29, 1946, as the last 

will and testament of T. 6. Hendrick, deceased. On August 10, 

1946, Ida Hendrick filed in the coupty court an instrument which 

recited the execution by herself and her husband of the will 

theretofore admitted to probate and declared: “I am satisfied 

with the d&positions of our estate made thereby and do ratify 

and confirm such will and each of the eleven codicils.” 

Of the million-dollar trust fund described above, the 

First Item is clearly exempt from payment of any inheritance 

lu under the provisions of Chapter 5, Title 122, V.C.S., since 

it comet3 within the exemption provided by Article 7122 for 

“property passing ,to or for the use of . . . any religious, eduCation& or charitable organiaatiopl when such bequest, devise 

or gift is to be used within this sbte.” Pse risn Church in 

U. S. v. Sheppard, Civ, App., 198 S.W. ( 

me executor tar the estate admit,s that this exsmpbhm aMnot 

be claimed for the other four items previously listed, inasmuch 

a$ these items are not to be expended within the state, but contends that only on%-half of said amout%?@ went to the trustue out 
Hon. Geo. H. Sheppard, Page 5 (V-704) 

of the estate of T. G. Hendrick, deceased, and that the remaining one-half paid over to the Baptist Foundation of Texas, 

trustee, was paid over out of the share of Mrs. Ida Hendrick 

in the community property of herself and her deceased husband and was not subject to tax by virtue of Article 7117, 

V.C.S. In effect their contention is that the trustee acquired 

one-half of said funds by gift from Mrs. Hendrick rather-than 

by the will of Mr. Hendrick. If their contention is correct, the 

taxes due by reason of the receipt of said funds on the death 

of T. G. Hendrick should be computed on the basis of the amount received from his community interest regardless of 

whether or not the transfer of Mrs. Hendrick’s interest is 

taxable at her death under the provisions of Article 7117, V.C.S. 

ing: 

The relevant provisions of Article 7117 are the follow- 

“All property within the jurisdiction of this 

state . . . which shall pass absolutely or in trust 

by will . . . or by deed, grant, sale, or gift made 

or intended to take effect in possession or enjoyment after the death of the grantor or donor, 

shall, upon passing to or for the use of any person, corporation, or association, be subject to a 

tax for the benefit of the State’s General Revenue 

Fund, . . . . Any transfer made by a grantor, vendor, or donor, whether by deed, grant, sale, or 

gift, shall, unless shown to the contrary, be deemed to have been made in contemplation of death and 

subject to the same tax as herein provided, if such 

transfer is made within two (2) years prior to the 

death of the grantor, vendor, or donor, of a material 

part of his estate, or if the transfer made within such 

period is in the nature of a final distribution of property and without adequate valuable consideration.” 

Three opinions of this office have dealt with similar 

problems. Opinion O-4109 dealt with the following facts. The 

husband by will disposed of the entire community estate, setting up a trust for the surviving wife who was to have the use 

of the homestead and household furnishings and an annuity of 

$24Og,Og per year for life. At the termination of the trust the 

corpus was to be distributed to aeven named parties, The #tarviving wife elected to take under the will, and the opinion holds 

that although the wife’s interest was not subject to tax by reason of being less than her community interest, Jones v. State, 

5 S.W. (2d) 973, the remainder interests in the properties passed to the devisees by the will of the husband; that all property 

passing under a win absolutely or in trust is subject to tax by 
Hoa. Geo. H. Sheppard, Page 6 (V-70$) 

rmcH0 & me&g under a condition tUrned in Article 7117, SUI 

pr@; d tbt *the inheritance tax . . ., weei to be base& uplo 

t&6 tehl wlue eo pcr6ta~ to thsm owl iit E4fied up.on ml vlmu 

aU aaly the one-half commutity intetedt of *a tret8tW * * 

waste, I3 The writer of Opinion O-4109 reached the conclusian 

Wr %re entire-osrrutieo interest pwsed unrkr the will by re4e * 

*on of authorities ‘tifcb &ol4 WC toJlur tLa detrfae of election 

%e who accepts II ban&t under a w@L mudd adopt the whole cmtents of the instrument, so far aa it concerns him. , ,’ Phfll e 

Y, Hollida , 24 Tax. 30; aad that title i9 &rived from t 

g=Fg$&Wg t;y;;,z1 

livdk 

-“4;&w&y& 

wl@o toek the view 6&$ when elsct6 te ww 

uader the htisband’d) wok whi a&* cm 

muf&ty eetate, the4 inbadi6nce tuceg 4uu by hemwn of the ree*L* 

al property by third p~rtias must be computed on the b&811; U# fxlr 

WI vbtluw of the property received. 

Opinion O-5557 involved the fallow&# i*at$, Ibe &z#- 

hand’s will created a testamentary trust disposing of the entire 

community estate. The surviving wife allowed her share of the 

community to pass according to her husband’s will which prorided that she receive 316 of the trust income for life and Wt 

8 gotr cnl daughter er their ehildrelli, on stated contingencies, 

xeeeive the balance of the income in fixed amounts and the corpus of the trust ten years after their mother’s death. The q&nion holds that the wife’s relinquishment of her share of the cdmmunity was 4 “deed, grant, sake or gift made or intenakd to i&s# 

effect in possession or enjoyment after the death Oz i&e grentoe 

ar donor “; end that therefore at her Ieatb an inheritice tax WWF 

due, “such tax . . . to be based um the full amount ef suCh inn 

WWste ariefng from b&cl. Handley’s one-half interest in tbe 

cbmsnusity proper@ which forms the corpus of the trust.” Thus 

unly one-half of the other deyisees’ ‘interests was regwded as 

having passed by the wilt. of the husband, the other one*hrtf p4$$- 

ing on the death of the wife-a result which is clearly contra to 

the result reached in Opinions O-4109 and O-191, which held that 

as a result of the wife’s eleCtion the whole community estate passei under the will, Tbnr miter further strted tkat it ~48 not nM%esaary te decide whether the wil:l reguiked an election in the technical sense of the term since it was certain “that by such relinquishment Mrs. Handley divested herself of her share in the corn-- 

munity and placed such share under the testamentary trust createU by her husband’s will to be distributed in accordance with the 

terms thereof, Certain also is the fact that the relinquishment 

operated to bestow upon the ultimate beneficiaries of the trust 

one-half of whatever they acquire under such trust, Practically 

and legally the result is the same as if Mrs. Handley had at the 

time of her relinquishment created a separate and independent 
Hon. Geo. H. Sheppard, Page 7 (v,-704) 

trust with her share of the community, employing the same provisions that were contained ia the trust sstablished by her husband and designating the same beneficiaries,” 

The writer of this opinion reached the conclusion just 

stated by analogy to the decision in Bethea v. Sheppard, 143 S.W. 

(2d) 993, error refused. The facts in the Bethea case clo~oly 

parallel the facts presented by your instant request. In the Bethea 

case Mr. and Mrs. Hcnke executed a joint and mutual will (lacking 

the express contractual provision of the T. G. Hendrick will) which 

provided, as did the Hendrick will, for the disposition of their entire community estate. As in the material parts of the Hendrick 

will, the will constituted the trust instrument and provided for certain bequests to become effective on the death of the husband, who 

was made trustee of the wife’s interest in tbo evemt she predeceased him; but if the husband predeceased the wife, the entire community estate passed into the trust established by the will. Under the 

terms of the trust agreement, after her husband’s death Mrs. Henkc was to receive $40,000 per year (subject to increase on stated 

contingencies) for the remainder of her life. The daughter, Mrs. 

Bethea, likewise received an income from the trust during the life 

of her mother and for eight years following her death, at which 

time, again subject to stated contingencies. she was to receive the 

corpus of the trust. Mr. Henke did predecease his wife. and the 

will and trust instrument was probated as his will, and inheritance 

taxes were paid the State on his one-half of the community estate. 

When Mrs. Henke died, Mrs. Bethea contested the payment of inheritance taxes on her mother’s one-half of the community estite 

which had gone into the trust. The Court held that “the net value 

of the corpus of the trust estate in suit was taxable upon the death 

of the grantor. . .” on the grounds that by its very terms the trust 

instrument “brings the iastant case squarely within tbo statute, 

which . . . imposes the tax upon the passing of the property or interest therein when ‘made or intended to take effect in possession 

or enjoyment after the death of ths grantor.“’ Now if the property 

had passed “by the will” of Mr. Herke which’also established the 

trust, a fortiori, it could not have passed, as the Court held that 

it did, by “deed, act, sale or gift” from Mrs. Henke “made or intended to take effect ia posseasioa or enjoyment after” her death. 

The fact that Mrs. Hendrick received no income from the 

trusts here involved can in no way operate to cause the transfer of 

her community interest to the trusts to pass by the will of Mr. Hendrick. In her case, no beneficial interest was reserved, nor was 

the transfer in any way deferred until her death. So we are of the 

opinior that it follows as a necessary corollary to the Bethea case 

that by the terms of the foist and mutual and contractual will, Mrs. 

Hendrick made what was, in effect, a transfer of her community interests to the trusts named therein and that said transfer took ef- 
Hon. Geo. H. Sheppard, Page g (V-704) 

fact on the happening of the limiting condWon precedent, to w&t* 

Mr. Hendrick’s death-not hers. So viewed, t&e transfer fails 

to come within the provision of Article 7117 rehting to property 

passing by will. 

We think that the foregoing fultp auhlltantiatea this conclusion; but in view of the adverse affeat en the atate’s revenue# 

which will result from an overruling 3 Opifiicas 04109 Uwt g-1)1, 

we think it proper to support our conoIt@ia by further &&isct.u3rlen 

of relevant authorities, 

We think that our holding is consistent with the holding of 

the Commission of Appeals in Jones v. State, 5 S.W. (2d) 973. In 

that case “the testator died leaving a community estate of the total value of $335,246.00. The will by its terms devised to the widow certain specific property of value approximately one-half of the 

total community property. * The will specifically requested the 

wife to accept the bequests “in lieu of her community and.dower 

interest in all other property.” The surviving wife accepted the 

provisions. The Court said: 

‘Much strags has been laid by cotmae $0~ tha 

state upon the doctrine of electirm under wills under 

which rule it is contended the Burviving wife, havi 

eleotsd to take under the will, has done $0, wd wil ? 

not be heard to dispute her act&en er to avoid the effect thereof: that by a proper application of the doctrine there has passed by the will the specific devises 

made. 0-1 the other hand, coutlsltl for 

P 

laintiffs in er* 

ror insist the doctrine does nut a~&&* this case, be- ’ 

cause she has taken nethiq un&r ihe will which abs 

would net otherwise have been entitled te trke, and 

therefore thoro is ne squity to estop her, 

“It cannot be said broadly that the surviving widow ha8 not taken anything under ths will which she 

would not otherwise havs received, since she has received specific property under the will, whereas in 

the absence of the will she would have owned an undivided ene-half interest in all the property. But 

this is of no moment in the consideration, for we have 

seen that by the terms of the statute before the tax is 

imposable the property must have passed by the will. 

We are of the opinion no property passed to the widow 

by the will in any event. It is undisputed that all of the 

Q&ate possessed by the testator was community proparty, As mat!& of law, the wife was the equal -02 

in her own right of one-half of that estate.. . . 
Hon. Geo. H. Sheppard, Page 9 (V-704) 

“Now if the surviving w~idow owned in her own 

right an undivided ore-half interest in the community 

property of herself and husband, then she had title to 

that extent to such property, and, if the will of deceased did not pass any property to her, clearly she is not 

taxable. The will did not pass any property whatever 

to her, because it operated only as an effective partition of the community property after death. A partition deed or agreement does not pass title at all. Indeed it is not within the statute of frauds. It may as 

well be oral as in writing, all because a partition is 

not a conveyance of land. (Citations omitted) 

“Under the undisputed facte, the surviving widow 

having received no more than her just share of the 

community property fully owned by her prior to the 

death of her husband, or if slightly in excess of her 

one-half, yet not as much as the minimum amount 

taxable under the act, $25,000, she has received no 

property through the operation of the will. The only 

effect of that instrument was to partition the community property between the surviving widow and the 

other beneficiaries: in other words, to make definite 

the particular portion of the community property OWRed by her, and not in anywise to affect, by increasing 

or diminishing, her estate. This is not the passing of 

property contemplated by the Inheritance Tax Act. To 

impose the tax under such circumstances would be to 

visit the tax upon the real owner whose real right to 

the property has not been affected one way or the 

other by the death of a co-owner, It in undisputed 

that the taxes have been paid upoa that portion of the 

estate received by the others named as devtsees who 

took the testator’s one-half of the property.” 

Opinion O-4109 recognized that under the doctrine of 

Jones V. State, supra, no inheritance tax was due the State from 

the surviving wife since the value of the interest received was 

less than the value of her community interest; however, the remainder interests (partially composed of the wife’s community) 

were regarded as passing under the will. We do not think that 

the holding in Jones v. State can be properly limited in its application to that part of the wife’s interest which is received by 

the wife. In other words, we are of the opinion that if the husband’s will did not “pass” her interest to her “by will” within 

the meaning of that phrase as used in Article 7117, V.C.S., it 

likewise does not “pass” her interest to others “by will.” It is 

true that there are authorities which, in analogous cases dealing with the relinquishment of dower rights, have regarded prop- 
I&n. Geo. H. Sheppard, Page 10 (V-704) 

erty so passing as subject to tax under similar statutes in 

other states. The opinion of the Court of Civil Appeals in 

Jones v. State, 290 S.W. 244, which was overruled by the 

Commission of Appeals, cited and followed numerous of these 

authorities all holding, in effect, that when the wife accepts 

under the husband’s will a bequest in lieu of dower, the proper 

so accepted is subject to inheritance tax. In rejecting the 

Court of Civil Appeals’ opinion, the Commission of Appeals 

affirmatively rejected this line of authorities. Mr. Judson 

Falknor praised this decision in an article entitled “Liability 

of the Entire Community Estate for the Payment of State Inheritance Tax When IIusband Undertakes to Dispose of Entire 

Community Estate by Will and Wife Elects to Take Under the 

Will.” 5 Wash. Law Rev. 55. Mr. Falknor said: 

II 

. . . The language used by . . . the Supreme 

Court of Texas . . . is logical and in conformity 

with our fundame,nwt notions of the community 

property system /?.e., the wife’s actual ,legal 

ownership of her?ommunity interest as eontradistinguished from the common law dower right 

which is generally viewed as an equitable interest or as an expsctancy and which was involved 

in the cases relied upon by the Cou 

peals’ opinion which was overrgle 4 

f of Civil Ap* 

and a sirngIe 

application of the fundamental conceptions demonBtrates not only that the stat& fi%ferring to t&i 

State of Washington under our$resent Inheritance 

Tax Statute, is not ;I ntitled to e tan upon the wife’s 

share in the community property, even where she 

elects to take under the will, but that an attempt 

on the part of the state to levy such a tax raises u 

serious constitutional question as te its right to cl0 

SO.. . . 

. . 6 6. 

. 

“Before the state can plausibly make such an 

attempt, a further voluntary arid affirmative action 

on the part of the wife is required, In other #clr&, 

she must agree and consent, either by a for-1 written acceptance of the will and relinquishment of her 

interest in the community property, or by virtue of 

an estoppel, that her half of the community property 

shall, along with the husband’s half, be turned inta 

the trust. But ,I$& &mounts to nothing more than a 

conveyance by the wife to the trustee, after the de@% 

of the husband, of her interest in the community property. The fact that the entire community property 
Hon. Gee. H. Sheppard, Page 11 (V-704) 

finds its way into the trust does not mean that the 

trustee or the beneficiaries under the trust receive the property by will or inherftance; it simply means that one-half of the community property 

goes to the trustee for the benefit of the named beneficiarie.8 by virtue of the will of the hnsbad, and the 

other half of the community property goes kto the 

trust because of the voluntary and, what clearly 

seems to be, the legally affirmative act of the wife.” 

Thus, as we view the matter, Opinion O-5557 reaches 

the correct result, and even in cases in which the surviving 

spouse takes affirmative action to relinquish his or her community share after the death of the spouse who has by will disposed of the em community estate, the share of the survivor 

does not pass by the will of the deceased spouse within the meaning of Article 7117. Opinions O-4109 and O-191 are therefore 

overruled. 

We think that the instant case in which the surviving 

wife entered into the trust agreement prior to the death of the 

husband is an even clearer case for the refutation of the view 

that her community interest passed “by his will” within the 

meaning of Article 7117. To lump the estate of the surviving 

spouse with the estate of the deceased spouse and compute an 

inheritance tax on the combined value is clearly contra to the 

obvious purpose of the provision of the statute which imposes 

a tax upon the receipt of property which has parsed “by will,” 

since it was obviously designed to tax the privilege of receiving property from the dead-not from the living. 

Even thought we have concurred with the theory submitted by the attorney for the e:xecutor, i.,e., that only T. G. 

Hendrick’s one-half interest in the community is subject to tax 

as passing by will, we differ as to the amount which passed from 

T. G. Hendrick’s interest to the Baptist Foundation as trustee on 

which the taxes due are to be computed. 

Your file shows that at the death of T. G. Hendrick the 

value of Ida Hendrick’s community was placed at $2,269,289.44. 

However, it must be borne in mind that $500,000 of this amount 

was specifically diverted into the trust establi,shed for her benefit, and altimately, on her death, for the benefit of the Hendrick 

Home for Children at Abilene. To that extent, then, the ratio of 

her contribution to the Baptist Foundation must be deemed to 

have beer reduced accordingly, and the amount passing by the 

will to the Baptist Foundation from T. G. Hendrick% community 

interest necessarily exceeds one-half of the sum bequeathed in 

the same ratio. Specifically, the value of the amount which pass- 
. 

. 

Hen. G#. If, Bheppud, Page 12 (V-794) 

el, fran T. 0. Hm&Ack’e estate shQIILs6 Mm dS?&m~d by multiplplali *e, waeuat of the taxable beque&# w 

Ljketise, In this case we thi@ tkalM~!lr. Hendrick’s 

,*rmatfve actr, in jotni.ng in and acc,eptfng the previsions of 

T. G. Xisndrkk’s will dis,posin~ of the community es+.ate, followod by her de&b wi,thin kas than two yews, comb aI@& ,fh9 f&lloWing previdon of Article 7117, V.C.S.r 

. 

at did,: whether by deed, grant, e8k, vr gtiti, &U, 

Any treader made by l grm~tor, vsndr 

unless shown to the contrary, be deemed $0 have been 

made in contemplation of death and subject to the 

game far as herein provided, il $wB tr&&~ is 

made withtn two (2) years prior ‘1A VU &a&i& d thr 

grantor, vendor, or doww, ad l ~&S&U &a!0 oi h&a 

@tabs, or if the transfer mada Wit?&8 gpd x period IS 

in the nature of a final distributfon of prlppsrty and 

without adequate valuable coauhloratiion,” 

Therefore, on her death an inheritance tax beeame due 

and owing the State, and should ba compute8I on the baeis of the 

amount of the gift of her community Sntesreat; spe~cifically, that 

amount should be determined by multiplying the value of the ~taxable bequeets by 1,769,299.44. 

930 570 8% 

Even though the $500,000 transfer from her prope@rty ;o the trust established for her benefit is 

also clearly within Article 7117 as a transfer “by deed, grant, 

sale, or gift made or intended to. t&e effect in possession or enjoyment after the wth of the grantor or donor,” Bethea v. She - 

%“bY 

rd.143 SW. (2d) 997, error rc)fus~II &are is, o dx 

reauoa of the fact that the ult%mate beneficiary, tbb Hen- 

~dHme for CWdrea. is eammpt by virtue of Article 7122, 

l . 

We hast thet the foregoing hse answered yeur q#Hoa 

and are returning your file herewith. 

S-Y ‘, ’ 

Where aommunfty eetete was canpletely diapmocl of at death of husband by J&&t wili and kugt 

iaemma& only the wlw of %s amelgn~ u&g& 

HUM fran hi$ community one-half shoutd k# wmd 

Y) a tad for cmnputing the inheritance taxes due 

etsarr duih. uadem kctu e*bcl, ialicritdlace t&m% 

rWo becune d&e at W w!fob demtb, which occti 

lea@ W two years after the husband’s death; and 

. 
Hon. Ceo. H. Sheppard, Pago 13 (V-704) 

the Laei~ for computing the taxes dim et &e-r bnrrth 

should be the value of the Am@ *beklr lmd puo*d 

from her OM-half of #c co?rlm@* *t @A6 deba of 

the husband to the beneficierl*s rluva ta the )sht 

will Ad truet istetrumoat. brlonr 

are overruled to the extent % 

0493 d ?4M9 

aq o#liut W&k&i@ 

143 $.W.@d) ptl, #4fa 

ATTORNEY oEaouLobTE%As 

bfC/JCP 

ENC. (1) 

APPROVICDI