THEATTORNEYGEN~~FCAL 

OF TEXAS 

May 21, 1959 

Honorable Robert 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 predeceased Mrs. McMullen, 

left an adopted son and an adopted daughter. 

:Your question is as to which of the two classifications for inheritance tax purposes should 

these adopted children be placed. 

Article 7122, Class E, is a general classification which includes those not coming under 

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 ~more favorable 
Honorable Robert S. Calvert, page 2 (w-629) * 

classification of Class C, as prescribed by 

Article 7120. 

Article 7120, Class C, contains the following language: 

"If passing 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 shall b e . . . (Emphazis added) 

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, Is an absurdity, 

but that Is not the question. The question 

before us is whether or not they are lineal 

descendants within 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 state because the Supreme Court 

on several occasions has held that such adopted 

children are to be regarded as direct lineal 

descendants under 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 'opinion of the Court, after 

first stating that such adopted children are 

not direct lineal descendants (a biological 

fact which Is beyond dispute) then proceeds to 

hold that they are direct lineal descendants 

within the meaning of a statute similar to 

Article 7120, Class C. We quote from the 

Yturrla case: 

"Insofar as it applies to the questions 

presented by this record, Article 7487, 

R.S., subjects to a tax all .property 

within the jurisdiction of the state upon 

. 

. 
. . 

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

its passing by will or by descent to or for 

the use of any personi 'except the father, 

mother, wife or direct lineal descendants, 

of the testator,' ..,~ (o) As it was the 

nrivileae of a child of'Danle1 Yturria 

bder A&lcle 7487, to ha& the property 

within the .jurisdlction of this state pass 

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, bequests passing to 'or for 

the use of husband or wife or any 'direct 

lineal descendant' of husband or wiv ' 

quoted phrase means lineal descendants of 

a pre-deceased spouse as nell as of,a 

surviving spouse, Including adopted daughter of testator's pre-deceased wife." 

-(Emphasis added) 

This line of authority has 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 should be classified 

for inheritance tax purposes under Article 7l2O, 

Class C. 

Article 468, V.A.C.S., Seetlon 9 of OUP 

adoption statutes provides that all adopted 

children shall Inherit from the adopted parents 

and shall thereafter be regarded and held to 

be, for every purpose, 

or parents by adoption. 

the child of Its parent 

The broad term 'for 

every purpose' surely must include inheritance 

tax purposes. 
Honorable Robert S. Calvert, page 4 (‘ ww-629) 

SUMMARY 

"Adopted children of the decedent's deceased 

sisters are 'direct lineal descendants' of 

the deceased sisters within the meaning of' 

this phrase as used in Article 7120, Class e, 

and must therefore be,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