                                                                 R-949




                      E   ATTORNEY              GENERAL
                              Q,F TEXAS               Overrules opinion dated
                                                      5/24/37 to Cecil Ii.Bird
                              Au~~IN~~.-I~xAs         Comptroller'sDept.
PRICE   DANIEL
ATTORNEY
      GENERAL
                                December 3, 1947


        Hon. Geo. R. Sheppard
        Comptroller of Public Accounts
        A uatin, Texaa                 Opinion Ro. V-440
                                                Re: Whether half sister
                                                    Is included in the
                                                    classifioatlonof
                                                    sister for inherit-
                                                    ance tax purposes
         Dear Sir:
                   By your letter of Rovember 21, 1947, we are
         advised of the following facts:
                      "This department has fixed and assess-
                 ed an Inheritancetax against the eatate of
                 Leo T. Cone, late a resident of ffonxales
                 County. The estate, under the terms of the
                 will of the deceased, was devised to two
                 sisters, 8 brother and a half sister, and
                 when applying the exemptionsallowed under
                 the statutes, this departmentallowed a full
                 exemptlon of $10,000 each to the sisters of
                 the full-blood,but only allowed an exemption
                 of $5,000 to the slater of the half-blood.
                      "The exemption allowed the sister of the
                 half-blood Fs now In controversywith the At-
                 torney of Record, Mr. Ii.1. Miller of Gonzales,
                 Texas. . . ."
                  We are further advised that the value of the
        property passing to the half sister was less than $25,000
        and that the tax was computed at the rate of 3$ of the
        value In excess of $5,000. You state that your ruling
        was based on an Opinion of this Department rendered in
        1937 and request that we reconsider the holding of that
        Opinion.
                  Article 7117, Ch. 5, Title 122, V.C.S., imposes
         an inheritancetax "In accordancewith the following clas-
         sifications". The Articles which follow establish differ-
Hon. Geo. Ii.Sheppard - Page 2   (v-448)


erent classes, define those within each class, state the
exemption to which the members of the partfeularclass
are entitled,and impose a tax upon the amount in excess
of the applicable exemption in fixed percentagesfor va-
rious value brackets. These brackets and percentages
vary for each class. Article 7120 provides that "if
passing to or for . . . the use of a brother or sister
or a direct llneal desoendant of a brother or slater, of
the decedent, the tax shall be three per cent of any
value In exoess of ten thousand dollars and not exceed-
ing twenty-fivethousand dollars; . a ." The ascending
rate of tax on other value brackets follows. If brothers
and sisters of the half blood do not come within thls
class, they are relegated to the category of "any other
person" and embraoed by the terms of Article 7122. #em-
bers of the class establishedby Article 7122 receive an
exemption of $500 and are taxed at 5s on any value in
excess of $500 and not exceeding $lO,OOO, wtth stated ln-
creases in the peroentage of the tax as the value braoket
rises.
          The DepartmentalOpinion on whiah your ruling
was based states that "our Inheritancetax law operates
In dipect relation to the laws of descent and distrlbu-
                             *" and In holding that a
tion Fn effect in Texas . . .)
brother of the half blood was entitled to half the ex-
emption accorded a brother of the whole blood, the
writer undoubtedlyhad in mind the provisions of Article
2573, V.C.S., whloh states that "where the fnherltance
is directed to pass to collateral kIndred of the intes-
tate, if part of s.uchcollateralbe of the whole blood,
and the other part of the half blood only of the intes-
tate, those of the half blood shall InherLt only half SO
much as those of the whole blood; e o *" However, it Is
obvious that an allowance to 8 half slsl;~3~
                                           of only one-
half'the Exemption allotted to a'brother or a sister of
whole blood, but a computation of the tax at the rates
stated for the latter class, as was done in this case,
gives a hybrid result for which there can be no posstble
justificationunder any theory- Moreover, we think It
is apparent that the creation of a different exemption
with or without a different tax rate is, in effect, the
creation of a different class and an act which lies
only in the power of the Legislature. A half sister
is either within the class created by Article 7120 or
out of it; and if out of It, must, as aforesaId, be
relegated to "any other person" and the class created
by Article 7122.
Hon. Oeo. H. Sheppard - Page 3 ,(~-448)


          Various authoritieshave defined the ‘terms
“brother’and “sister” as Including "hslf brother" and
“half sister”. ColrpusJuris, Vol. 9; pp. 679, 680, and
Vol. 58, PP. 739,       ebster*s BlewIntbrtitibtilMb.-
;:,“zioiei ~&&dth~&WSupreme      Court of Texas in 16%
                     terms are general, and those of the
half as well as those of the whole blood come striotly
within their scope and slgniflcatioti.”Marlow v. fin&,
v&    177. See also Watkins et al v’.Blount 94 S Y .
    . Although no Texas case has construed ihe te&s as
used In the lnherltame tax statutes;   we see a’o reason
why the same constrwtlon would not be applied. This Is
the view of’the Supreme Court of Colorado, and the opip-
ion contains an excellent summary and analysis of the
authorities. People V. Elllff, 219 P. 225. The result
of Including “half brothers” and “half sisters”   within~
the classlficatlonof “brothers”and “sisters”     Is more-
over in line with the Texas decisions whioh adhere to
the establishedrule requiring that words in common we
when found in a statute must be given the sense ih which
they are ordlnarlly used, T. k P’.Ry Co. v. Railroad’
Commission of Texas, 105 Tex. 393 l;O S.W. 878 Qd
with the pronouncements.of our co&s    to the efiett that
inheritancetaxes are special taxes and that the statutes
Imposing same will be construed strictly against the tax-
1% power. Lewis, Assesaor.et&v. O’Halr, 130 S.W. (2)
379.
            You are therefore advised that a half sister
properly falls within the olasaifioatlonof Artlole 7120
and Is entitled to the same exemptionand same tax ratea
as a sister   of whole blood.
          The Opinion of this Offioe dated May 24, 1937
addressed to the Hon. Ceoll H. Bird of the Comptroller’s
Department is overruled.
                     SUNMARY
          In computing Inheritance taxes due by
     virtue of Ch. 5, Title 122, V.C.S., a half
     sister should be ~placedin the sa.meclas-
     slficatlonas a sister. Harlov v. King
     17 T. 177; People v. Elllff, 219 P. 225,‘and
     authoritiescited therein. The Opinion of.
Hon. Geo. H. Sheppard - Page 4 ,,(V-448)


    this Offlae dated May 24,,,1937addresaed to
    the Bon; Cecil H. Bird of the ~ComptPoller~s
    Department Is overruled.
                       Youra very truly
                   ATTORREYGERFlRALOFTKXAS


                   Bra-Mrs. MariettaaCreel
MC/erc/lh                          Assistant


                   APPROVED:
