Untitled Texas Attorney General Opinion

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Honorable Roy &using County Attorney Lipsocmb County Higgins, Texas~ _~:;,..,yi-. .~. .,: Dear Sirs Opinion.Ro* O-676. ~ : , '. .. Rex A suit for taxes, aooruihg both prior to and after ths : death of deoedent, may be malntsinedagainet an estate without first presenting a olaim to the administrator or exeoutor.. : '. ::' :' .,.~. This Is in.answor to your inquiry in whioh,you ask ~the following questionsr

"1. Does the distriot oourt have original juria- diction to try delinquent tax suit and~foreolose tax l$en on land against an estate for delinquent taxes that hares - aoorued prior to the death of the deoeased. where no olaim had been presented tothe administratrix-for approml or rejeotion?

"2. Does the distriot oourt have original jurirdiotion to try delinquent tax suit and foreolose tax lien on lend against an estate for delinquent taxes thathave accrued sub- sequent to the death of the deceased, where no claim had been presented to the administratrix for approvalor rejection?

"3. Does the distriot oourt have original jurir- diction to try delinquent tax suit and foreolose lien upon land for delinquent taxes against an estate that has an acting admiaistratrix, without first presenting a claim for the taxes~to the administratrix for approval or rejea- tien, where it is 8hom that paic of the taxes involving the suit aoorued prior to the death of the deoeased and part subsequent to the death of the deceased?

"4. Does the distriot court have original juris- diotion to try delinquent tax suit for foreclosure of tax lien on land againat an estate, with a qualified and acting administratrix, without first presenting a claim for ap- proval or rejection, where it is shone that six mortgagees* interests were involved?"

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Xoon.Roy Sansing, page 2 O-678

As w understand the facts in the oars you ask about, an administra- tion is pending in the ease of an estate in which there are taxes due on land belonging to the estate that accrued both prior to and after the death of the decedent.

At the outset we are confronted with the general rule that before a suit can be filed against an executor or administrator for a claim for money owed by the deoedent that said claim must first be presented to the exeoutor.or administrator and they fail or refuse to pay the same. &kin6 v. Cain, 72 Tex. 88, 10 9. K. 393; Tolivar v. Lombardo, (Ct. Civ. App.) 88 S. 9. 733; end 14 Tex. Jur. 28, 107, 112. The same general rule applies to claims for money that are scoured by mortgages or other liens. Buohanan v. 'Alagnon,62 Tax. 376; R. L. Whth:,o. v. Stout,~(Ct. Civ. App.) 102 S. W. (2d) 1065 (error dis- . These rules are by virtue of Articles 3609, 3522, 3526, 3530, Revised Civil Statutes of Texas, which read as followsr

k-t. 3509. All olaims for money against a testator or intestate shall bs presented to the exsoutor or ad- ministrator uithin one year after the original grant of letters testamentary or,of administration, otherwise the payment thereof shall be postponed until the claims mhioh have been presented within 'oneyear and allowed by the exeoutor or administrator and approved.by the county judge have been first entirely paid.

"Art. 3622. When a'olaim for money against an estate has been rejected by the exeoutor or administrator, either in whole or in part, the owner of suoh olaim may, within ninety days after suoh rejection, aMnot thereafter, brings suit against the executor or administrator for the establish- ment thereof in any oourt having jurisdiction of the same.

."Art: 3628. The provisions of this ohapter respeating the presentation of olaims shall not be so .construedes to apply to the olaim of any heir, devisee or legates when olaim- ing as such, nor to any claim that aooruss against the estate after the granting of letters testamentary or of administration for which the exeoutor or administrator has contracted .

'Wt. 3630. No judgment shall be rendered in favor of a olaimant upon any-01eSp for money which has not been legally presented to the executor or administrator, and rejeoted by him, either in mboie or in part."

Ry virtue of Artiole 3628 those taxes that did not beoome due until after the administrator was appointed would not have to bs presentedto the administrator before suit could be maintained. See Adrianoe v. Crews, 45 Tex. 181, and Atrip v.,Rinkle, (Ct. Civ. App.) 268 S. W. 860.

.. Hon. Roy Sansing, page 3 O-676

As to the taxes that became due prior to the appointient of the administrator your questions are more diffioult. I% must decide whether or not a claim for texes is an exception to the general rule stated above. We are unable to find any Texas appellate court oases on the question.

The statutes quoted above are not statutes of limitations {Gaston v. Boyd, 62 Tex. 282; Whitmire v. Powell, (Tex. Civ. App.) 117 S. W. 433)~ but Article 3509 puts certain time restrictions on everyone who has a claim for money against the estate. We think the same reasons that,are given~for a statute of limitations not running against the Stats'~hlsoapply in this ease; The state~should not be bound bythese~statutbs any more than it is bound by a statute of limitations. Under the disoussion of "limitation of aotions" in 17 Ruling ,Casehaw 967,.~97C,'wefind the following;

"It is a maxim .of great antiquity in .the English law that no time runs against the crown, or, as it is expressed in the,early writers, nullum tempusoaourrit, regi. The reason 8metimeS assigned why no'laohes,shall be imputed to the king~is,that he,is oontinually busied for the publio good, and has no leisure to assert his rights within the period~limited to his subject. But a better reason is the ,greatpublia polioyof preserving public rights and property from damage and loss through the negligence of~publio officers. . . ,. * * ,* '-"The general principles as to the immunity of the sovereign frcmlaohss and statutes of limitation which arose in E&land have been applied in reference to the statutes of the Amerioan union. Statutes of limitations do not apply to a state when suing in its sovereign oapacity, unless the statute provides to the oontrary, or unless the state,18 neoessarily included by the,nature of the misohiefs to be,rsmedied. . . ."

This rule, and all of its reasons, has been adopted by the Texas courts. drown v. Sneed, 77 Tex. 471, 14 S. W. 246; and l?aters- Pierce Oil Co. v. State,~4STex. Civ. App. 162; 106 S. W. 918.'

It is a fundamental rule of law. aside from the provisions in the Constitution, that all property should,bs ~taxeduniformly, and everyone should bear their tax burdens equalIy"with everyone else. Mullins v. Colfax Consolidated'School Mstrict; 16 S. VT. 2nd~940. He do not believe it was intended by the law-makers that the State should - bs subjeoted to certain procedural diffioulties in oolleating taxes in those oases where the tax debtor dies, end thereby run the risk of the debtor's property esoaping its just share of taxes in those cases, when it does not have to follow any suoh prooedure in the ease of living persons who ows i&es.

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Hon. Roy Sansing. pege 4 O-678

One of the purposes of these statutes (Art. 35OQ),etc.) is to give the administrator or executor of the estate an oppor- tunity to asoertain what debts are owned by the estate before he closes the administration. Garrettv. Gaines, 6 Tex. 435. It.is not necessary that a claim for taxes be presented in order for him to know the t%mouutof the taxes due because he hss constructive notice as a matter of law of the taxes owed to the State, It is a matter of publio record at the court house.

Although me are not aided by acy Texas appellate court cases on this question, we find that in twelve other states that have laws on preeentat,ionof claims to administrators and exeoutore similar to the Texas.St+tutes there are appellate court decisions on this question. 'Cur unoertainty on the.law.on this question $I not., removed by these out-of-state oases because eight of those,states : follow one holding and four fol%w the opposite holding. Eight hold that a alaim for taxes does not need to,.bepresented tothe adminis- trator or exeoutor, 88:Pollcwsr California (People V~..Olvera,.43 Cal. 492), Indiana :(GrahamV. Russell,,152 Ind.,l86,~52 N. &806;: Cullop V. Ci%Vinoennes, 34 :Ind.App.,687,~72~N. R . 1663 and .- Barnum V. Rall$ha& 63 Ind.,App..349, 112 N. E. 561)~ Iowa (Piadley. T. Taylor~,97.Iona 420, 66 N.,?~.744)j,Maryland (Bonapexr. State, 63 Md. 465); Missouri (State V. Tittmen, llQ~,No.661;24 S* W. 1032)~ Ohio (Gager V. Pront, 48~Oh. St. 89. 26 N. E.,l013); Utah (Clayton V. Goody, 33 Utah.251~.93 Paa..723)a and Wisconsin (,&TV. Laughlin, 149 Ms. 271, 136 N. W. 606, 40 L. R. At:(N7S.)2?'1 and In re Adams' Estate, 272 N; 8. 19)3 and four hold that B olaim for taxes must be presented to the administrator or exeoutor:before suit for the same can be filed against the estate, those st+tes being Connecticut (.SherwoodV. City of Bridgeport, 123 Corm. 348. 195 Atl. 744); Illinois (Stone r. Board of Review, 345 Ill. 286, 188 N. E. 430)3 . Nebraska (IdilletV. Early, 16 Reb. 266, 20 N. II. 352); and Pennsyl- mn re Thompson's Estate, 130 Pa. 8upra. 263, 197 Atl. 5470

We think the majority holding is the better rule. It was expressed by the Supreme Court of Indiana in the ease of Graham V. Russell, supra, as follows:

"The contention of appellant's aouusel that the petition ought to have alleged that the taxes in dispute had been filed as a claim against Graham's estate prior. to its final settlement is,withoutmerit. The facts dis- close thatthedecsdent had for.ms.nyyears prior to.his death failed to list and ~r&turofor taxation.a large amount of his property, and at his death it is charged he was liable to the payment of taxes, on,acoowt of his yid~ default,,in the sum of $3,000 and oyx, which had acarued and were due for state, county, and tomnship purposes. Taxes ere not suoh olaims rhiah the law of this state either requires-or intends shall be filed-for payment a- gain& a decedent's estate. It is true that taxes, in

iion.Roy Sensing, page 6 O-678

the order prescriSed by the statute for the payment of liabiiities of a decedent's estate, come within the fourth provision of such order of payment. Rev. Qt. 1881, 2 2378 (Bornsq Rev. St. 1894, 8 2534). The duty, however, rests upon the administrator or executor to pay the taxes due against the estate without their being filed or presented for payment. . . . . He, whii~nin life, owed, as one of the highest duties to the goverc- msnt, the duty to pay all taxes imposed upon hjs property linb!e to taxation. As s oompensation for the discharge of their duty, the state afforded him protection to his life, liberty, and the due enjoyment of the property with whioh he had been blessed3 and',thedischarge of his duty, if the dseedent is'shom to have omitted it, must rest upon his estate. %th or without knowledge of the existence of this liability of her decedent, it existed, all the seme, agsinst the property of his estate until paid, unless barred by some provision of law. . . A tax olaimor ohaige; a,8we have eeen, is not required to be filed again&an estate, but it must bs taken notioe of by an administrator or exeoutcr, and paid without being-filed; and, if he proceeds to finally settle the estate without the payment of such tax oleim, settled or determined by proper'edjudihation in oourt, he does so et the peril of heving.suoh final:settlenent set aside, under the statute&i question, at the instance of some one entitled to institute an 'aotionfor that purpose."

The Supreme Court of Wisconsin took e similsr view in the cese of In re Adams' Bstate, supra,,in which it said:

"At the outset it shculd~be noted that in respect to claims for taxes generally, lithe more general view is that the requirement of presentation does not apply to claims for taxes and assessments, whether assessed before or after the death of decedent.* 24 1% J. 325 2 946. In holding that it was not neoessary to present e claim for e tax levied on prcperty,.omitted from the tax roll in former years, in the county ocurt es e aleim against the estate of 8.decedent, this court in Rogue V. Laughlio, 149 1Ais.271, 136 N. W. 606, 610, 40 L. R. A. (9. 8.) 927, Ann. Cs. 1913C, 1367; quoted the following: 'Taxes are not such claims which the law of this state either requires or intends shell be filed for payment against e decedent's estate. It is true that taxes, in the order prescribed by the statute for the payment of liabilities of a deoedent'k estate, acme within the fourth provision of such order of payment. . . . The duty, however, rests upon the administrator or exeoutor to pey the taxes due against the estate, without their being filed or presentod for payment.'"

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Hon. Roy Sawing, page 6 O-678

It is our opinion that the distriat court has original jurisdiction to try a delinquent tax suit and foreclose a tax lien on land for taxes, acaruing both prior to and subsequent to the death of the decedent, tithout first presenting e claim for said taxes to the administrator or executor of the estate; and therefore, our as‘swer to each of your four questions is "yes."

Yours very truly

OF TEXAS +TTI)RN%YG:,NE:RAL

Ry s/Caoil C. Rotsoh C.¶cilC. Rotsoh Assistant CCR:N:wo

APPROVED JULY 28, 1939 s/N. F. Moore FIRST ASSISTANT ATTORNEY GENRRAL

Approved Opinion Committee By TDR Chairman

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