                  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
