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Honorable Oeorge A.’ Sheppard
Comptroller of FublIo* Aooouata
Austin, Texas
Dear Sir: Opinion lo. O-5457,
J R0: ClassIfIoatIon 0r foster ohlld ,i
who has not been adopted In.’ :
aooordanoe with adoption statutes
for Inheritance tax purposes.
We are In receipt of your letter of July 20, 1943.
The facts therein stated are, briefly, as follovs: Decedent
left a vi11 by whioh she devised and bequeathed to her “foster
son” (so described In the will) some $15,000.00. Devisee had
lived with deoedent for many years and had been held out by
her as her son. Ee had, likewise, performed the duties of a
son to decedent. IVo effort appears to have been made by
decedent to adopt devlsee In aooordanoe with our adoption stat-
utes, and It Is certain that decedent did not at any time comply
with such statutes.
You request the advice of this department as to whether
such “foster son” should be placed in Class A, as provided in
Art. 7118, V. A. C..S., or vhether he should be placed In Class
E, as provided in Art. 7122, V. A,. C. S., for the purpose of
assessing the Inheritance tax due owthis estate.
Article ~7117, V. A. C. S., subjeots all property :
passing by will or by the laws of descent and distribution
to an inheritance tax in accordance with ths classification
set out in Articles 7118 to 7122, v. A. C. 3 ., inclusive.
Article 7118, so far as pertinent hereto, reads
as follows:
Honorable Qeorge Ii. Sheppard, Page 2 (O-5457)
“If passing to or for the use of husband or wife
or any direct lineal descendant of husband or wife, 0;
any dlreot lineal desoendant or ascendant of the deced-
ent, or to any leizally adopted ohlld or ohlldren of the
deoedent, or to the husband of 5 daughter, or the wife
of a son, the tax s‘hall be one (1) per on any value
in exces: s of Twenty-five; Thousand Dollars $25,000),
and nc$ exceeding Fifty Thousand Dollars ( 50,000);
. . . (Emphasis ours).
Artlole 7119 relates to property passing to the
United States for use In this State. Artlole 7120 relates to
property passing to a brother or sister or a dlreot lineal
desoendant of a brother or sister of deoedent. Artlole 7121
relates to property Passing to an unole or aunt or a dlreot
lineal desoendant of an uncle or aunt of decedent. Artlole
7122, so far as pertinent here, reads as follows:
“If passing to or for the use of the United States
to or for the use of any other person or religious, eduda-
tlonal or charitable ornanlzatlon OF institution,. OF to
any ‘other person,. OorpoFatlon or association not lnc1aed
in any of the orasses mentioned in the OrlglnrAzt known
as Chapter 29 of the General Laws of the Second Called
Qesslon of the Thirty-eluhth Legislature, the tax shall be:
on,any value In exoess of 500 and not exoeedlng $10,000
on any value in excess of 10,000 and not exceeding
5,000 . . .‘I (EFphasls ours
Articles 7118, 7119, 7120 and 7121 enumerate a11 of
the classes mentioned in the !‘Orlglnal Act known as Chapter 29
of the Qeneral Laws of the Second Called Session of the Thirty-
eighth Legislature .‘I
The only; questloti presented 1s vhether the ,devlsee
in question 1s a legally adopted child” within the oontempla-
tlon of Artlole 7118. If not, then he 1s some “other person
. . . . not included in any of the classes mentioned la the
Original Act,” and 1s subject to the Wovlslons of Article 7122.
Our oourts have consistently held that lk avder to
constitute an adoption there must be a compliance with the
adoption statutes in foroe at the time of the alleged adoption.
Honorable Oeorge H. Bheppard, Page 3 (O-5457)
Sanders v. Lane, (Corn. App.) 227 9. W, 46; J. M. Ouffey
Petroleum 00. V. Hooks, 106 9. W. 690 %7 Tex, Clv. App.
560, error refuaedj Powell v. Ott, 146 5. W. 10991 Thompson
v. Walta, 159 S. W. 82 error refucledj Royal Neighbors of
Amerloa v. Fletoher, 240 8. W. 476~ Allso v. Vaden, 112
9. W. (26) 237, error dlsmlrsed,
It la true that od oourts have held that where
one taker a ,ohlld Into hle home ar his own, thereby reoelv-
Ing the benefits aoorulng to him from auoh relation, he also
aasumee the duties and obligations Inoldent theretot and
where justloo and good faith require It, the oourt will en-
foroe the rights Inoldent to the statutory relation of
adoption, even though there has been no oompllanoe with the
ado tlon statutes. Cubley v. Barbeej 123 Tex. 411 73 9. W.
(2dy 72~ Jones vI Ouy, 135 Tex. 398, 143 S. W. (2dj 9061
Treme v. Thomas, 161 S, W. (26) 124, These oases, however,
are not authorit? for the proposition that a ohlld oan be
t’legallg adopted’ In the absenoe of oanpllanoe with the
adoption atatuter. The holding In these oases, on the oon-
trary,, IO based upon the dootrlne of “estoppel In pals” or
“equitable estoppel.” Applying this doctrine the oourts
hold that under wok olrcumstanoer the adoptive carents and
their ~lvles are preoluded frown assertlag-the livalldits
of ths adoption prooeedlngs or the status of the adopted
hlld In other words, t he adoptive parents and th I
his are estopped from asserting the true facts zhgoh
would show that the child 1s not a legally adopted child.
We find no Texas case construing the term “legally
adopted child” as the term 1s used in our inheritance tax
statute. (Art. 7118) Other courts, howev’er, have oonstrued
the term. In the case of Wooster v. Iova State Tax Commls-
slon, 298, 1. W. 922, the Supreme Court .of Iowa had’before~ It
the oonstruotlon of the term Ilegally adopted child” as used
in the Inherltanoe tax statutes of the State of Iowa. The
faots la the oase, under the Iova decisions, created an
estoppel as against the adoptive parents and their prlvles,
but the adoption statute had not been complied with. In
holding that olalmant was not a “legally adopted child”
within the meaning of the inheritance tax statute the court
said :
Honorable George Ii. Sheppard, Page 4 (CM457)
“The conclusion that Grace 3. Wooster was not
a legally adopted child of Della B. Wooster appears
Fnescapable . She did not have the status of an
adooted child or anv rlRht of lnherltance as such.
A decree establish& her rights in the woperty of
the deceased foster parents could not have thawed
her previous status to that of adopted child. The
principle Involved in such equitable proceedings l.s
property recompense measured in the amount fixed in
the statutes of descent and dletrlbutlon.
“Appellee argues that the state 1s in, such prlvlty
,wlth Della B. Wooster as to be bound by the estoppel
against her. In support of this contention It 1s said
the state allows the party to fix the status of the
child and should be bound by the status so fixed by
its authority. With this statement we do not agree.
The state, through its legislative enactments, allovs
the status of an adopted child to be fixed by one
method only, towlt, by statutory adoptlon. When such
status has been thus fixed the legally adopted child
becomes entitled to the exemption and classification
provided by statute for property passing to a legally
adopted child. Obviously, when a party falls to take
steps required by the state to effectuate a legal
adoption the estoppel against said party resultinq
from such non-compliance with the statute does not
bar the state from standing upon the facts as they
actually exist in making classifications for lnheri-
tance tax purposes.
“Nor do we agree that a decree establishing
appellee’s rights would constitute a judgment ln rem
determining her status which would be binding upon -
the taxing authorities. One reason for this,, 1s that
appellee never had the status of an adopted child
and the courts ‘do not undertake to change the status’.
Such decree would merely establish her property rights.
II. . .
‘Honorable Qeorge H. Sheppard, Page 5 (O-5457)
“The oonoluslons heretofore reached require a
holding that appellee Is not entitled to the exemp-
U;Fdrate of inheritance tax of a legally adopted
Thls neoessltates a reversal. It 1s suggested
by apkllee that children In this situation are en-
titled to the sympathetic consideration of the oourt.
To that we fully agree. iHoxever, It 1s not our province
to legislate. Apparently, the Inheritance tax rtatutes
now In foroe favor and, therefore, tend to enoourage
legal adoptions. Whether or not the provlslons In
question should be broadened to include children not
legally adopted Is a questlon for leglslatlve determlna-
tlon.” (Emphasis ours)
In re Clark's Estate, 105 Mont. '401; 74 Pao. (26)
401) 114 A. L. R. 496, Is a oase where the oourt passed upon
the olasslfloatlon for Inherltanoe tax purposes and the rate
of tax to be imposed upon property passing to a ohlld under
the will of an adoptive parent. The ohlld had not been
adopted In oompllanoe with the Montana adoption statutes,
but under the law of that state the faots were sufficient
to establish adoptlon by oontraot or estoppel. The Montana
inheritance tax statute extends the exemption to “a child
adopted as suoh in oonformlty with law.” The oourt held
that since the adoptFon,,etatutes had not been oomplled wlth
;:;.;hlld had not been adopted as such in conformity vlth
In the case of Sommers v. Doersam, 115 Ohio St. 139,
152 A. E. 387, the court says:
“The expression ‘legally adopted’ means in accord-
ance with the lava of the state in force and effect at
the time of the execution of the will. These matters
are, of oourze, statutory. . .‘I
And the Supreme Court of Kansas in the caze of
Ellis v. Nevlns Coal Co., 100 Kan. 187, 163 Pao. 654, in
construing the phrase “children and parpV)L,sinclude that
relation by legal adoption,” az the phrase 1s used in, a
vorkmsn’s compensation act, states:
Honorable George H. Sheppard, Page 6 (O-5457)
“The words ‘legal adoption’, appearing in the
last clause of the statute, signify adoption accord-
ing to law; that is, according to’ the statute relating
to adpptlon.”
We thlnk that the foregoing authorities correctly
define and construe the pbrasi “legally adopted child” to
mean a child adopted in compliance with the adoptlon statutes
in force and effeot at the date of the alleged adoption. Nor
do we think that the holding of our courts in the cases of
Cubley v. Basbee, Jones v. Guy and Treme v. Thomas, cited
above, militate against this conclusion, since those holdings
are predloated not upon the validity of the adoption, ,but
upon an estoppel to deny the validity of euoh adoption.
We,therefore, ?espeotfully advise you, and It Is
our oplnlon, that the beneflolary in question Is not the
“legally adopted ohlld” of the decedent, for the reason that
there was no compliance with the adoption statutes, in force
and effect at the date of the alleged adoption. Consequently,
you should apply the provlslons of Article 7122 in OlasSlfylng
this beneflolary and assessing the tax.
Trusting that we have fully answered your lnqulry,
we are
Very truly yours
ATTORNEY
GENERAL
OF TEXAS
FR :AMM
:MJs
APPROVEDOPINIONCOMMITTEE
BY /s/ BWBCHAIRMAN
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