In my opinion the entire judgment should be reversed and rendered, and in so far as the majority opinion fails to do so, I respectfully dissent.
The majority opinion recognizes that Mrs. Tarbutton does not fall within any of the classes named or described in Art. 7118, Class A, V.A.C.S. It is only by reference to the adoption statutes in force when Mrs. Tarbutton was adopted and the application of the Supreme Court decision in State v. Yturria, 109 Tex. 220, 204 S.W. 315, L.R.A. 1918F, 1079, that the majority reaches the conclusion that Mrs. Tarbutton is in Class A.
In my judgment the Yturria case is not applicable and this because of the legislative history of the inheritance tax statutes subsequent to the decision in the Yturria case.
Art. 7487 of the Revised Statutes of 1911, in force when the Yturria case was decided (1918) did not mention adopted children. In 1923 the Legislature, for the first time, mentioned adopted children in the inheritance tax statutes. Chap. 29, Acts 38th Leg., 2nd Called Session. While the inclusion of adopted children in the 1923 Act did no more than write into the statute the effect of the decision in the Yturria case, it indicated an intent on the part of the Legislature to assert its lawmaking prerogatives.
The decision in the Yturria case and the 1923 amendment limited the favoritism shown adopted children to those adopted by the decedent.
This limitation was carried forward in the 1935 amendment, Art. 7118, V.A.C.S., but as to adopted children, the benefits of the favored classification were extended to direct lineal descendants of adopted children of the decedent.
The maxim expressio unius est exclusio alterius "signifies that the express mention or enumeration of one person, thing, consequence or class is tantamount to an express exclusion of all others." 39 Tex.Jur., p. 158.
I believe this rule of statutory construction to be applicable and, the language of the statute being plain, that the rights of adopted children and their children are, under the inheritance tax statutes, limited to children adopted by the decedent.
Another reason compels this conclusion.
"A statute should be construed so that effect is given all its provisions, so that no part will be inoperative or superfluous, * * *." Sutherland Statutory Construction, 3rd Ed., Vol. 2, Par. 4705.
The majority holds that Mrs. Tarbutton falls in Class A under the clause, Art. *Page 684 7118, "or any direct lineal descendant of * * * wife * * *." If this be correct then, by the same reasoning employed by the majority, children adopted by the decedent would fall in Class A under the clause, Art. 7118, reading, "or any direct lineal descedant * * * of the decedent," which construction renders the clause referring to adopted children of the decedent superfluous.
Furthermore, I have a strong conviction that Art. 7118 is being judicially stretched out of all proper proportions and that the courts are adding exemptions not found in the statute, for reasons which the Legislature probably should consider, but as yet has not considered, sufficient to warrant preference; but in this there has not been consistency. This is the inevitable result of courts deciding cases according to what the judges conceive to be right or wrong.
In the Lewis v. O'Hair, Tex. Civ. App. 130 S.W.2d 379, 380 (Austin CCA No Writ Applied for), the court held, in construing Art. 7118, that the "wife of a son" meant the widow of a deceased son, saying:
"The trend of decision and legislation has been to give a liberal construction of and to liberalize the statute in the interest of those having some legitimate character of claim to the donor's bounty, and this regardless of whether there be a legal kinship by blood or marriage."
Yet, in Johnson v. Davis, Tex. Civ. App. 198 S.W.2d 129 (Austin CCA Writ Ref. NRE), the court held that a divorced wife and the mother of testator's three children was not a wife within the meaning of Art. 7118. The mother of a man's three children, it seems, would have as much "legitimate character of claim to the donor's bounty" as the widow of a deceased son.
In my opinion the decision in the Davis case properly construed the statute as it is written; while the O'Hair case construed the statute as the court thought it should have been written.
Now in this case we are asked to hold, and the majority does so hold, that the adopted child of a deceased wife is by the devious method of resorting to the adoption statutes and the court decision in the Yturria case, a "direct lineal descendant of * * * wife" even though the decedent left a surviving wife.
I am unwilling to thus rewrite a plain statute.