i
      C.

                            .:.~     . . .   .




    Honorable Roy &using
    County Attorney
    Lipsocmb County
    Higgins, Texas~
                                                _~:;,..,yi-.           .~. .,:
    Dear Sirs                            Opinion.Ro* O-676.     ~ : , '. ..
                                         Rex A suit for taxes, aooruihg
                                              both prior to and after ths :
                                              death of deoedent, may be
                                              malntsinedagainet an estate
                                              without first presenting a
                                              olaim to the administrator
                                              or exeoutor.. : '. ::' :'
                                        .,.~.
               This Is in.answor to your inquiry in whioh,you ask ~the
    following questionsr

                  "1. Does the distriot oourt have original juria-
           diction to try delinquent tax suit and~foreolose tax l$en
           on land against an estate for delinquent taxes that hares     -
           aoorued prior to the death of the deoeased. where no
           olaim had been presented tothe administratrix-for approml
           or rejeotion?

                  "2. Does the distriot oourt have original jurirdiotion
           to try delinquent tax suit and foreolose tax lien on lend
           against an estate for delinquent taxes thathave accrued sub-
           sequent to the death of the deceased, where no claim had been
           presented to the administratrix for approvalor rejection?

                   "3. Does the distriot oourt have original jurir-
           diction to try delinquent tax suit and foreolose lien upon
           land for delinquent taxes against an estate that has an
           acting admiaistratrix, without first presenting a claim
           for the taxes~to the administratrix for approval or rejea-
           tien, where it is 8hom that paic of the taxes involving
           the suit aoorued prior to the death of the deoeased and
           part subsequent to the death of the deceased?

                  "4. Does the distriot court have original juris-
           diotion to try delinquent tax suit for foreclosure of tax
           lien on land againat an estate, with a qualified and acting
           administratrix, without first presenting a claim for ap-
           proval or rejection, where it is shone that six mortgagees*
           interests were involved?"
                                                                    .%   -
                                                                             .




Xoon.Roy Sansing, page 2            O-678



As w understand the facts in the oars you ask about, an administra-
tion is pending in the ease of an estate in which there are taxes
due on land belonging to the estate that accrued both prior to and
after the death of the decedent.

           At the outset we are confronted with the general rule that
before a suit can be filed against an executor or administrator for
a claim for money owed by the deoedent that said claim must first be
presented to the exeoutor.or administrator and they fail or refuse to
pay the same. &kin6 v. Cain, 72 Tex. 88, 10 9. K. 393; Tolivar v.
Lombardo, (Ct. Civ. App.) 88 S. 9. 733; end 14 Tex. Jur. 28, 107, 112.
The same general rule applies to claims for money that are scoured
by mortgages or other liens. Buohanan v. 'Alagnon,62 Tax. 376; R. L.
Whth:,o. v. Stout,~(Ct. Civ. App.) 102 S. W. (2d) 1065 (error dis-
       . These rules are by virtue of Articles 3609, 3522, 3526,
3530, Revised Civil Statutes of Texas, which read as followsr

          k-t.   3509. All olaims for money against a testator
   or intestate shall bs presented to the exsoutor or ad-
   ministrator uithin one year after the original grant of
   letters testamentary or,of administration, otherwise the
   payment thereof shall be postponed until the claims mhioh
   have been presented within 'oneyear and allowed by the
   exeoutor or administrator and approved.by the county judge
   have been first entirely paid.

           "Art. 3622. When a'olaim for money against an estate
    has been rejected by the exeoutor or administrator, either
    in whole or in part, the owner of suoh olaim may, within
    ninety days after suoh rejection, aMnot   thereafter, brings
    suit against the executor or administrator for the establish-
    ment thereof in any oourt having jurisdiction of the same.

           ."Art: 3628. The provisions of this ohapter respeating
    the presentation of olaims shall not be so .construedes to
    apply to the olaim of any heir, devisee or legates when olaim-
    ing as such, nor to any claim that aooruss against the estate
    after the granting of letters testamentary or of administration
    for which the exeoutor or administrator has contracted .

           'Wt. 3630. No judgment shall be rendered in favor
    of a olaimant upon any-01eSp for money which has not been
    legally presented to the executor or administrator, and
    rejeoted by him, either in mboie or in part."

           Ry virtue of Artiole 3628 those taxes that did not beoome
due until after the administrator was appointed would not have to bs
presentedto the administrator before suit could be maintained. See
Adrianoe v. Crews, 45 Tex. 181, and Atrip v.,Rinkle, (Ct. Civ. App.)
268 S. W. 860.
                                            ..




Hon. Roy Sansing, page 3            O-676



           As to the taxes that became due prior to the appointient
of the administrator your questions are more diffioult. I% must
decide whether or not a claim for texes is an exception to the
general rule stated above. We are unable to find any Texas appellate
court oases on the question.

           The statutes quoted above are not statutes of limitations
{Gaston v. Boyd, 62 Tex. 282; Whitmire v. Powell, (Tex. Civ. App.)
117 S. W. 433)~ but Article 3509 puts certain time restrictions on
everyone who has a claim for money against the estate. We think the
same reasons that,are given~for a statute of limitations not running
against the Stats'~hlsoapply in this ease; The state~should not be
bound bythese~statutbs any more than it is bound by a statute of
limitations. Under the disoussion of "limitation of aotions" in 17
Ruling ,Casehaw 967,.~97C,'wefind the following;

           "It is a maxim .of great antiquity in .the English
   law that no time runs against the crown, or, as it is
   expressed in the,early writers, nullum tempusoaourrit,
   regi. The reason 8metimeS assigned why no'laohes,shall
   be imputed to the king~is,that he,is oontinually busied
   for the publio good, and has no leisure to assert his rights
   within the period~limited to his subject. But a better
   reason is the ,greatpublia polioyof preserving public
   rights and property from damage and loss through the
   negligence of~publio officers. . .
                          ,. * * ,*
         '-"The general principles as to the immunity of the
   sovereign frcmlaohss and statutes of limitation which
   arose in E&land have been applied in reference to the
   statutes of the Amerioan union. Statutes of limitations
   do not apply to a state when suing in its sovereign
   oapacity, unless the statute provides to the oontrary,
   or unless the state,18 neoessarily included by the,nature
   of the misohiefs to be,rsmedied. . . ."

This rule, and all of its reasons, has been adopted by the Texas
courts. drown v. Sneed, 77 Tex. 471, 14 S. W. 246; and l?aters-
Pierce Oil Co. v. State,~4STex. Civ. App. 162; 106 S. W. 918.'

           It is a fundamental rule of law. aside from the provisions
in the Constitution, that all property should,bs ~taxeduniformly, and
everyone should bear their tax burdens equalIy"with everyone else.
Mullins v. Colfax Consolidated'School Mstrict; 16 S. VT. 2nd~940. He
do not believe it was intended by the law-makers that the State should   -
bs subjeoted to certain procedural diffioulties in oolleating taxes
in those oases where the tax debtor dies, end thereby run the risk
of the debtor's property esoaping its just share of taxes in those
cases, when it does not have to follow any suoh prooedure in the ease
of living persons who ows i&es.
                                                                                   .
;,   ~._           ._~._..                                          .,        ,.       :




     Hon. Roy Sansing. pege 4              O-678



                One of the purposes of these statutes (Art. 35OQ),etc.)
     is to give the administrator or executor of the estate an oppor-
     tunity to asoertain what debts are owned by the estate before he
     closes the administration. Garrettv.    Gaines, 6 Tex. 435. It.is
     not necessary that a claim for taxes be presented in order for him
     to know the t%mouutof the taxes due because he hss constructive
     notice as a matter of law of the taxes owed to the State, It is a
     matter of publio record at the court house.

                Although me are not aided by acy Texas appellate court
     cases on this question, we find that in twelve other states that
     have laws on preeentat,ionof claims to administrators and exeoutore
     similar to the Texas.St+tutes there are appellate court decisions on
     this question. 'Cur unoertainty on the.law.on this question $I not.,
     removed by these out-of-state oases because eight of those,states :
     follow one holding and four fol%w the opposite holding. Eight hold
     that a alaim for taxes does not need to,.bepresented tothe adminis-
     trator or exeoutor, 88:Pollcwsr California (People V~..Olvera,.43
     Cal. 492), Indiana :(GrahamV. Russell,,152 Ind.,l86,~52 N. &806;:
     Cullop V. Ci%Vinoennes,      34 :Ind.App.,687,~72~N. R . 1663 and .-
     Barnum V. Rall$ha& 63 Ind.,App..349, 112 N. E. 561)~ Iowa (Piadley.
     T. Taylor~,97.Iona 420, 66 N.,?~.744)j,Maryland (Bonapexr.    State,
     63 Md. 465); Missouri (State V. Tittmen, llQ~,No.661;24 S* W. 1032)~
     Ohio (Gager V. Pront, 48~Oh. St. 89. 26 N. E.,l013); Utah (Clayton V.
     Goody,    33 Utah.251~.93 Paa..723)a and Wisconsin (,&TV.    Laughlin,
     149 Ms. 271, 136 N. W. 606, 40 L. R. At:(N7S.)2?'1    and In re Adams'
     Estate, 272 N; 8. 19)3 and four hold that B olaim for taxes must be
     presented to the administrator or exeoutor:before suit for the same
     can be filed against the estate, those st+tes being Connecticut
     (.SherwoodV. City of Bridgeport, 123 Corm. 348. 195 Atl. 744);
     Illinois (Stone r. Board of Review, 345 Ill. 286, 188 N. E. 430)3 .
     Nebraska (IdilletV. Early, 16 Reb. 266, 20 N. II. 352); and Pennsyl-
     mn        re Thompson's Estate, 130 Pa. 8upra. 263, 197 Atl. 5470

                We think the majority holding is the better rule. It was
     expressed by the Supreme Court of Indiana in the ease of Graham V.
     Russell, supra, as follows:

                  "The contention of appellant's aouusel that the
           petition ought to have alleged that the taxes in dispute
           had been filed as a claim against Graham's estate prior.
           to its final settlement is,withoutmerit. The facts dis-
           close thatthedecsdent had for.ms.nyyears prior to.his
           death failed to list and ~r&turofor taxation.a large amount
           of his property, and at his death it is charged he was
           liable to the payment of taxes, on,acoowt of his yid~
           default,,in the sum of $3,000 and oyx, which had acarued
           and were due for state, county, and tomnship purposes.
           Taxes ere not suoh olaims rhiah the law of this state
           either requires-or intends shall be filed-for payment a-
           gain& a decedent's estate. It is true that taxes, in
iion.Roy Sensing, page 6            O-678



   the order prescriSed by the statute for the payment of
   liabiiities of a decedent's estate, come within the
   fourth provision of such order of payment. Rev. Qt.
   1881, 2 2378 (Bornsq Rev. St. 1894, 8 2534). The duty,
   however, rests upon the administrator or executor to pay
   the taxes due against the estate without their being
   filed or presented for payment. . . . . He, whii~nin
   life, owed, as one of the highest duties to the goverc-
   msnt, the duty to pay all taxes imposed upon hjs property
   linb!e to taxation. As s oompensation for the discharge
   of their duty, the state afforded him protection to
   his life, liberty, and the due enjoyment of the property
   with whioh he had been blessed3 and',thedischarge of
   his duty, if the dseedent is'shom to have omitted it,
   must rest upon his estate. %th or without knowledge
   of the existence of this liability of her decedent, it
   existed, all the seme, agsinst the property of his
   estate until paid, unless barred by some provision of
   law. . . A tax olaimor ohaige; a,8we have eeen, is not
   required to be filed again&an   estate, but it must bs
   taken notioe of by an administrator or exeoutcr, and
   paid without being-filed; and, if he proceeds to finally
   settle the estate without the payment of such tax oleim,
   settled or determined by proper'edjudihation in oourt,
   he does so et the peril of heving.suoh final:settlenent
   set aside, under the statute&i question, at the instance
   of some one entitled to institute an 'aotionfor that purpose."

           The Supreme Court of Wisconsin took e similsr view in the
cese of In re Adams' Bstate, supra,,in which it said:

           "At the outset it shculd~be noted that in respect
    to claims for taxes generally, lithe more general view
    is that the requirement of presentation does not apply
    to claims for taxes and assessments, whether assessed
    before or after the death of decedent.* 24 1% J. 325 2
    946. In holding that it was not neoessary to present
    e claim for e tax levied on prcperty,.omitted from the
    tax roll in former years, in the county ocurt es e aleim
    against the estate of 8.decedent, this court in Rogue V.
    Laughlio, 149 1Ais.271, 136 N. W. 606, 610, 40 L. R. A.
    (9. 8.) 927, Ann. Cs. 1913C, 1367; quoted the following:
    'Taxes are not such claims which the law of this state
    either requires or intends shell be filed for payment
    against e decedent's estate. It is true that taxes, in
    the order prescribed by the statute for the payment of
    liabilities of a deoedent'k estate, acme within the fourth
    provision of such order of payment. . . . The duty, however,
    rests upon the administrator or exeoutor to pey the taxes
    due against the estate, without their being filed or presentod
    for payment.'"
                                                                                 .
                                                                    -.   .   ”




Hon. Roy Sawing, page 6                O-678



            It is our opinion that the distriat court has original
jurisdiction to try a delinquent tax suit and foreclose a tax lien
on land for taxes, acaruing both prior to and subsequent to the
death of the decedent, tithout first presenting e claim for said taxes
to the administrator or executor of the estate; and therefore, our
as‘swer to each of your four questions is "yes."

                                          Yours very truly

                                                         OF TEXAS
                                        +TTI)RN%YG:,NE:RAL



                                           Ry s/Caoil C. Rotsoh
                                                C.¶cilC. Rotsoh
                                                      Assistant
CCR:N:wo


APPROVED JULY 28, 1939
 s/N. F. Moore
FIRST ASSISTANT
ATTORNEY GENRRAL

Approved Opinion Committee By TDR Chairman




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