## THEATTORNEYGEN~~FCAL OF TEXAS

May 21, 

### 1959

HonorableRobert S. Calvert Comptroller of Public Accounts Capitol Station Austin 11, Texas Opinion No.

## W-629

Re: The proper classification of adopted children of a decedent's:

deceased sisters for inherltanoe tax purposes. Otherwise stated, do these adopted children come under Class C as stated In Article 7120 V.A.C.S. or Class E~,as prescribed by Article 7122 V.A.C.S.
Dear Mr. Calvert:
Your request for ,opinion informs us that Alice McMullen left a net taxable estate of 

### $276,706.34 which passed by Intestacy. One sister,Mrs. Milliron,predeceased Mrs. McMullen and left two adopted daughters, and another sister,Mrs. Mattice, who also predeceasedMrs. McMullen, left an adopted son and an adopted daughter. :Yourquestion is as to which of the two classifications for inheritance tax purposes should these adopted childrenbe placed. Article 7122, Class E, is a general classificationwhich includes those not comingunder any of the other classes and prescribes a rather high schedule of Inheritance taxes.

. . Article 7120, Class C, provides a much lower schedule for the payment of the Inheritance tax. It Is our definite opinion that these adopted children of the deceased sisters of the intestate, Mrs. McMullen, come within the~morefavorableHonorableRobert S. Calvert,page 2 (w-629) *

classificationof Class C, as prescribedby Article 7120. Article 7120, Class C, contains the following language: "Ifpassing to OP for the use of a brother or sister, or a direct lineal descendant of a brother or sister, of th decedent, the tax shallbe ... (Emphazisadded) and then follows the schedule of payments. The question, simply stated,boilsdown to this:,
Are these adopted chj.ldren of the deceased sisters of decedent "direct lineal descendants of a brother or sister of the decedent,"within the meaning of Article 7120, Class C?
To argue that they are direct lineal descendants, literally speaking, Isan absurdity, but that Is not the question. The question before us is whether or not they are lineal descendantswithin the purview of the statute: shall they be regarded as direct lineal descendants forinheritance tax purposes under the statute?
We consider that this is no longer an open question in this statebecause the Supreme Court on several occasionshas held that such adopted children are to be regarded as direct lineal descendantsunder similar statutes. This point was precisely decided by the Supreme Court in the case of State ex rel Walton v. Yturrla, 204 S.W.315. The 'opinionof the Court, after first stating that such adopted children are not direct lineal descendants (abiological fact which Is beyond dispute) then proceeds to hold that they are direct lineal descendants within themeaning of a statute similar to Article 7120, Class C. We quote from the Yturrla case: "Insofaras it applies to the questions presented by this record, Article 7487, R.S., subjects to a tax all .property within the jurisdictionof the stateupon .

.. .

Honorable Rob~ertS. Calvert,page 3.(WW-629) ,

its passing by will or by descent to or for the use of any personi 'exceptthe father, mother, wife or direct linealdescendants, of the testator,' ..,~(o) As it was the nrivileae of a child of'Danle1Yturria bder A&lcle 

## 7487, to ha& the property within the .jurisdlction of this statepass to him, by will or descent,without payment

The case of Decker v. Williams, 215 S.W.2d 679, error ref., Is precisely in point. The syllabus correctly reflects the holding of the Court and we quote therefrom: "Under the inheritance tax statute taxing at lowest rates, bequestspassing to 'orfor the use of husband or wife or any 'direct lineal descendant' of husband or wiv ' quoted phrase means linealdescendants of a pre-deceased spouse asnell as of,a surviving spouse, Including adopted daughter of testator'spre-deceased wife." -(Emphasisadded) This line of authorityhas never been overruled so far as we are able to determine and it is still the law. You are therefore advised that these adopted children shouldbe classified for inheritance taxpurposes under Article 7l2O, Class C. Article 468,V.A.C.S., Seetlon 9 of OUP adoption statutesprovides that all adopted children shall Inherit from the adoptedparents and shall thereafterbe regarded and held to be, for everypurpose, or parents by adoption. the child of Its parent The broad term 'for every purpose' surelymust include inheritance tax purposes.HonorableRobert S. Calvert,page 4 

### (‘ 

## ww-629)

SUMMARY "Adopted children of the decedent'sdeceased sisters are 'directlineal descendants' of the deceased sisterswithin themeaning of' thisphrase as used in Article 7120, Class e, andmust thereforebe,classlfled for inheritance tax purposes under said article."

Yours very truly
WILL WILSON Attorney General

WRS:jlw
APPROVED: OPINION COMMITTEE George P. Blackburn, Chairman Ray Loftln Henry Braswell Morgan Nesbitt
APPROVED FOR ATTORNEY GENERAL By: W. V. Geppert Assist&t '1