OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
OROVER 8ELLERI
. AWORH~
QarmAL
Hon. Oeorgs & Sheppard
Comptroller or Public Accounts
Austin, Texas
Dear sir: Opinion Ho. O-7020
Rot Claesifloatlonor dlrorord
dim ror inh8ri8anoe
pUrpO8%?..
Tour roque8t ror opinion on th
haa been given Oarsrul oonaldrrationb
The recta stated are, brlsrly,
his firat rita, rho had threr o
tins ago, and a oompl~to partlt
munlty property at that time
remarriad, and deoedant in h
quest8 to the tormer nira.
wife alaim that she rhould 88 A r0r in-
herltanae tax
oites the roil
Ler1le v* O’Hal
Co, v, Riohard ringrellor t.
State, 61 SW
p&inent here, reads
adopted ohild or -ohll-
lineal desomdaat ~of adopted
of the decedent, or to the htw-
or the wire of a son, the tax
) per cent or any value in excess
Thouiand Dollar8 ($25,000), 6to.O
me fa0tO ia tlm CWalr 0886, 130 S3(2) 379,
were these : urn. Hattie O'Hair, the party asssrtihg the
86
Hun. George Ii,Shrppard - P8gr 2
right to ba plaoad ln OLaa A , 18 tha rurvlving wit8 (not
hat- maarrird) or Will O'Ealr who dlrd in 1919. To
them was born a aon, who was livLT at thr tim8 or the trial.
Will O*Hair was the.8011or H. J, and Mary O*Halr, who dlrd
in 1936 and 1937, resprotivrlg,raoh teetatr, and eaoh leaving
a brquest to hfr8. Hattie O%ir.
Thr 00~8, in dbdding 6% thi8 8Umri~& Wire 8hOuld
be plaord ti ah88 lib88idl
“The trend of deolrion and logislation ha8
bean to givr 8 llboral oonstruotlonof and to.llberal-
izr the statute in the interest or thoar havlnR some
1bRltlmatr oharaotsr of claim to tbr donor's bounty
and thir regardleas or whether there be a legal kin:
8hip by blood or marriage.
”. . .
*In thr generality or case8 - - and Ln OhtS8ify-
ing for taxing purpose8 onlg~tha gsnez%lity can.be
taken Into aooount - - ths oon8iderationswhloh would
motivate a rather - or loother-ln-law t0 provld8 ior
the daughter-in-lawwould be at least aa cogent after
aa before the death of the am. So aleo would br the
conrideratiorQ3 motlvatlng lsglslatlvs olaselfloation
in thL8 regard. The88 oonrldrration8.z are 10 obvious
as aot to reqtilre rtatemsnt or elaboration.
We think therefore ths~leglslativaintent to
meka no di8tinOtiOIlbetween the wifa Of a living
husband and bbs 8WViVill@ wife of a deceased husband
oan ba drawn from tha artlolr without doing violence
to it8 langu+sr.w
"m8 8wXtS itmu US08 tho eXpmsSiOn Wir8
i.nthe 88m 0r widow or 8univing tire 0r th0
dOOea8eb. And thi8 i8 JlOt an MOOPIBY)~ U%S Of WirO,
rxorpt when, eontaxtually or otherwise, it is olear
that it W68 intended to be used ln Ita atriot lexl-
oal meaning.” (Emphaslraddrd)
It cannot ba questioned that the court errived at
a most dsslrab1.aresult, a reeult which had due regard for
the rqultabla oonsideratlonsof the cam.
Y¶on,Oearge H. Sheppard - Page )
We 40 not is81 that ths oar4 or Awrioan Generel
Xnruranoe aompeny v. Riohardron i8 in point. That war a
workntsn~r oompen8atIon ease, and the question was whether
the 8UrriViZlg -Rio Or the deoeased rather Or 8 deocra8.d
employee, who war not the mother of the employee, and who,
after the death Of the 8mploy88'8 rathar remarried, but
Wall later divorced, wa8 the stepmother Of the employee with-
in the meanlog of Seo. 6a or Art, 8306, as amended in 1923.
l&e 1923 amendment to Art, 6306 pormltted the lnoluslon as
benerloiarles thereunder "parent8 an4 8&epmOther, without
regard to the question of dspon4enoy.” In the race or 8uoh
speolrlc provfalon, the Oourt said:
n
Xe believe it was the legislative
intent to ilici the 8tepmother in the sam category
in every respeot as the mother In so rar as ooncerns
the benefits of the Actr and that for this purpeaa
the relation was no more sorer,84by death or the
rather in the one case than in the other. , . *
Nor do we feel that StrlngfellOwv, State can ar-
teot the question now before ~8, That was a murder oase
wherein one or the ground8 0r the motion ror new trial
ohallenged the oompCtenoy of one Hanks, a juror. Hank8
an4 the 4404a8ad had married rirat 4OU8iJl8l the wire 0r
deoeased ha4 die4 somr year8 prior to the trial, leaving
tW0 SOlI a8 i8SUS. or th arrinal relatIonship, the Court
8aldt
*Exoept ior the iesue resultant or the
marriage betwren deoeased an4 his wife, the death
or aaid wire Would have tetinated the rslatlon-
ship. Under the authoritier, it seeme that by
rea8on of the lseuo the relationship Is extended
beyond the death of the rpouee. Undsr the-saw, as
it 18 underrtood in ttii8 8t4t4, m&8 and 4eceaae6,
by ma8on 0r their wires being riret iou8lna. war0
relate4 by arrlnltg. , , , The oontentlon by the
stat. that the relationbhlp ceased on the death of
the wife oi the decaarsd wocld be well taken in
the lbaenoe or issue ot the marriagei but as ap-
plied to this oase the Ineistmsnt is incorrect,
beoaase or thr birth end 8LlrT1Vingor the children
88
Hon. Georgs B. Sheppard - Pace 4
or the marriage. The proporltion that the re-
latlonehlp exist8 by reason Or the 188~s is 8up-
ported by the weight of authority.*
It oan be 8een reedlly that thr rule8 or arrinlty
and Interest, leading to prejudioe or pOesIb prejudloe of
a .JurorIn a murder oa8e can heve but little bearing upcn
the oonetruotlon of a taxi= statute, 4speOielly when the
$aXing Etatut 18 as 8pbOtriO a8 18 ths one before 08.
La8 ue ooneider the erfect of the divorce upon the
relation or the deoedent and his first wife in the ease
before us. It is said In 15 Tex. Jur. 560, sea. 93:
*In Tsxas, a decree of dlvoroe la absolute
from the date of its entry unless set aside or ap-
pealed rrom. It has the leRa1 8fraCt Of ooncluslve-
ly eatabllehlng the rtatus of the partier,ae 8ingle
operating, It has been 8-d 1 dts -
i!!i%%’ the nurriaR8 r616tiOu.” (%~piaeir~i~d~~)
In Stuart v. Cole, 92 SX 1040, the oourt said that
a deorae of divoroe “terminates the marriage relation.n
Regarding the relative status of the father an4
mother toward their ohll4ren after divorce, end the effect
or 4Ivoroe upon the 8tatur of the wife, the Court in Gully
v. Gully, 184 SW 555, 559, said:
When a divorce takes place he (the father)
la rtrlpped or this mpsrlor authority, the Wife Is
ezmnoipate4from her rubordination,and
with .ellthe rlRhttsor a rem8 s0le.~(2
I.nShook v. Shook, ‘145SW 682, which was a dis-
put8 between divorced parent& over rerponribilityfor rup-
;;b;,0r ohll4ren,and the 8i3tU8 Of the parents, the Court
“Arter thr rendition of the judgment for
divorce, J. 0. Shook’8 8tatue wae tbat or an un-
mrrled man, the relation with his wife having been
severed, and she then oonstitutedno part of h$s
iably. *
89
Hon. George H, Sheppard - Page 5
The exlstenos of issue, vel non, has no bearlng
whatever upon the finality of a deorre of dlvoroe. The
dlvoroed wire thereattar is a rem4 sole, ir no part 0r
the family oi the husband, ha8 no obligation to him, nor
hss he any obligation to her. Both are 8Ingle person8 ior
all purposes. The question8 0r 188ue, or llabillty ror
support of tha 155~3, have no bearing on the case berom
U8.
Under these authorities, the divorced wife ia
not a pareon “having come legitimate character of claim
to the donor’s bounty”, and consequently there Is no
occaslcn for a liberal construction of Article 7118, as-
suialng arguendo that there is room for construotlon Or
the nzanlng 0r “wife” to attempt to’inclu5e the for:ner
wife within the class~flcation thereln provided for.
A divorced wife cannot be Inoludsd within the designation
“wire** without doing violence to the language of the
statute and to the legislative intent. It is the opinion
of this department, therefom , that the divorced wife
properly should be claslified as such ‘other personn
referred to In Article 7l22, and that she is subject to
the provisions thereor.
Yours very truly,
ATTORNZY CZNXRALOF TEXAS
Byd&f&
Arthur L. Moller
Assistant