Farrier v. Calvert

ARCHER, Chief Justice. This suit was instituted by appellant to recover an inheritance tax which had been paid under protest pursuant to the provisions of Article 7057b, Vernon’s Civil Statutes. The tax was alleged to have been illegally assessed by reason of classifying a beneficiary under Class E — Article 7122, V.C.S., rather than under Class A — Article 7118, V.C.S. The case was tried without a jury. The trial court decreed that the' beneficiary had been properly classified for inheritance tax purposes under Class E of Article 7122, and rendered judgment for appellees. Appellant bases her appeal on the following assignment: “The Court erred in holding that Jessie S. Silveus, adoptive mother of the decedent, was properly classified for inheritance tax purposes under Article 7122, Class E, instead of Article 7118, Class A, V.A.C.S.” — 41 — On February 2, 1925, William A. Silveus and wife Jessie S. Silveus, by deed of adoption, adopted as their legal heir and son, a child about one year old and named him William I. Silveus in accordance with the adoption statutes then in effect. Subsequent to the adoption, the child was given affectionate care and consideration by his adoptive parents. William A. Silveus died prior to the death of William I. Silveus. Since there is no question raised as to the sufficiency of the adoption under the statutes in effect on February 2, 1925, we do not copy the deed of adoption herein, but observe that the child was adopted as the legal heir of the adoptive parents with whom the child had been placed by a Home Finding Society, to which the child had been given by his mother. Appellant contends that the adoptive mother is to be regarded within the meaning of the inheritance tax statutes as the “direct lineal ascendant of the decedent” and as such she is entitled to Class A exemption under Article 7118, V.A.C.S. The appellees take the position that the adoptive mother should be classified under Class E of Article 7122, V.A.C.S., and that the controlling fact in the case is that the decedent was adopted by the .beneficiary of his will (and her now deceased husband) in accordance with the adoption statutes in effect on February 2, 1925. Article 7118 provides for Class A classification for the following grortps: “If passing to or for the use of husband or wife, or any direct lineal descendant of husband or wife, or any direct lineal descendant or ascendant of the decedent, or to legally adopted child or children, or any direct lineal descendant of adopted child or children of the decedent, or to the husband of a daughter, or the wife of a son, the tax shall be * * * ”. We do not believe that under the language of Article 7118, V.A.C.S., the adoptive mother can be classified under Class A, because she is not a direct lineal ascendant of the adoptive son. 1 Bouv. Law Diet., Rawle’s Third Revision, p. 146. Under the adoption statutes in effect at the time the decedent was adopted, he became entitled to all the rights and privileges of a legal heir of the parties adopting him (with a possible limitation not material here), but no rights of heir-ship were conferred upon the adopting parents, and absent such privilege the adoptive parents cannot be given Class A classification. It is stated that the question presented herein has never been decided by the appellate courts of Texas. In State ex rel. Walton v. Yturria, 1918, 109 Tex. 220, 204 S.W. 315, 316, L.R.A. 1918F, 1079, it was held that legally adopted children come within the exemption then provided by Article 7487, R.S. (1911) for “direct lineal descendants” of a decedent, but did not allow such an exemption to the children of the adopted children. In Decker v. Williams, Tex.Civ.App., 215 S.W.2d 679, er. ref., the Court rejected the contention that the adoption laws of 1931, Vernon’s Ann.Civ.St. art. 46a resulted in extending the Class A classification to the adopted child’s children and wrote in detail and extensively as concerning the adoption statutes, the privileges, limitations and restrictions thereunder and no useful purpose can be had by inserting herein the holdings, but reaffirm all that is said therein. The subsequent amendments of 1951 to the adoption statutes cannot be applied retroactively to enlarge the rights of inheritance of adoptive parents of adopted children whose adoption was accomplished prior to the effective date of the amendment, and creates no privilege of inheritance on the part of the adoptive parents in — 42 — this case upon which to predicate Class A classification for inheritance tax purposes. Crew v. Looney, Tex.Civ.App., 300 S.W.2d 368, er. ref. N.R.E.; Johnson v. Davis, Tex.Civ.App., 198 S.W.2d 129, er. ref., N.R.E. In 1923 there was embodied the first specific provision relating to adopted children in the Inheritance Tax Statute. Acts 38th Leg., 2nd C.S., Ch. 29, p. 63, and in 1935 the benefits of Class A were extended to direct lineal descendants of adopted children of a decedent. Acts 44th Leg., Ch. 356, p. 922. There does not appear to he an indication of an intent on the part of the Legislature to extend this favorable classification to the adoptive parents of an adopted child. We are referring to the several statutes concerned with adoption, and not copying such herein, in an endeavor to not unduly lengthen this opinion. , The first adoption statute was enacted in 1850,' Pas.Dig., Art. 31. In 1907 certain provisions were made allowing natural parents to transfer parental authority to the adopting party. Acts 30th Leg.1907, Ch. XLVII, p. 103; Articles 3, 4 and 5, Title 1, R.S.1911 contain these provisions. Articles 3 and 4 were amended in 1920. Articles 1-8, Title 1, R.S.1911; Acts 36th Leg., 3rd C.S.1920, Ch. 62, p. 115; Acts 38th Leg.1923, 2nd C.S., Ch. 29, p. 63; Acts 42nd Leg.1931, Ch. 177, p. 300; Acts 44th Leg.1935, Ch. '356, p. 922; Acts 52nd Leg.1951, Ch. 249, p. 388. The adopted child did not become a “member of the family” for all purposes. The 1931 Act was an effort to create a new relationship between the adopted and natural children of the adoptive parent. Eck v. Eck, Tex.Civ.App., 145 S.W.2d 231, writ dism., cor. judgm., held this Act ineffective because of a defective caption. Article 46a, Sec. 9 of the 1951 Act makes an adopted child a member of the family of the adoptive parents only if such child is adopted subsequent to the effective date of the Act. Hoch v. Hoch, 140 Tex. 475, 168 S.W.2d 638. We have been afforded very complete briefs and have considered them carefully. Appellant has cited McDonald v. Texas Employers’ Ins. Ass’n, 267 S.W. 1074, er. ref. We do not believe the holding in this case to be determinative of the issue here involved. The primary concern in the McDonald case was the child’s right to maintenance, and the parents’ right to custody of the child, and a cause of action for compensation to repair the loss occasioned by the •death of the employee upon whom the beneficiary was dependent. Other cases cited by appellant include Johnson v. Davis, supra; Preusse v. McLerran, Tex.Civ.App., 282 S.W. 293, writ dism., w. o. j.; Chancellor v. Chancellor, Tex.Civ.App., 23 S.W.2d 761, er. ref. The cases are primarily concerned with the rights to support and maintenance by the child, and the adopted parents’ right to control and custody of the child, and such rights have no bearing upon the status of the adoptive parent for inheritance tax purposes, as a direct lineal ascendant of the decedent. In Calvert v. Fisher, Tex.Civ.App., 259 S.W.2d 944, er. ref., this Court reviewed many of the cases relied on by appellant. There has been a departmental construction for a long time that the beneficiary under circumstances such as in this case should be classified for inheritance tax purposes under Class E. The Attorney General’s opinion No. WW-195 introduced in evidence in this cause rules that the beneficiary in this case should be classified for inheritance tax purposes under Class E, and such opinion is — 43 — highly persuasive and is given great weight by the Courts. ,5 Tex.Jur. 379, Attorney General, Sec. 7. The judgment of the Trial Court is affirmed.