                   THEATTORNEYGEN~~FCAL
                           OF TEXAS



                                    May 21, 1959

     Honorable Robert S. Calvert
     Comptroller of Public Accounts
     Capitol Station
     Austin 11, Texas
                         Opinion No.   W-629
                         Re:   The proper classification
                               of adopted children of a
                               decedent's:deceased sisters
                               for inherltanoe tax pur-
                               poses. Otherwise stated,
                               do these adopted children
                               come under Class C as
                               stated In Article 7120
                               V.A.C.S. or Class E~,as
                               prescribed by Article 7122
                               V.A.C.S.
     Dear Mr. Calvert:
           Your request for ,opinioninforms us that Alice
     McMullen left a net taxable estate of $276,706.34
     which passed by Intestacy. One sister, Mrs.
     Milliron, predeceased Mrs. McMullen and left two
     adopted daughters, and another sister, Mrs.
     Mattice, who also predeceased Mrs. McMullen,
     left an adopted son and an adopted daughter.
     :Your question is as to which of the two classi-
     fications for inheritance tax purposes should
     these adopted children be placed.
          Article 7122, Class E, is a general classi-
     fication which includes those not coming under
     any of the other classes and prescribes a rather
..   high schedule of Inheritance taxes.
          Article 7120, Class C, provides a much lower
     schedule for the payment of the Inheritance tax.
     It Is our definite opinion that these adopted
     children of the deceased sisters of the intestate,
     Mrs. McMullen, come within the ~more favorable
                                                       .




Honorable Robert S. Calvert, page 2 (w-629)        *


classification of Class C, as prescribed by
Article 7120.
     Article 7120, Class C, contains the follow-
ing language:
    "If passing to OP for the use of a brother
    or sister, or a direct lineal descendant
    of a brother or sister, of th decedent,
    the tax shall b e ...  (Emphazis added)
and then follows the schedule of payments. The
question, simply stated, boilsdown to this:,
     Are these adopted chj.ldrenof the deceased
sisters of decedent "direct lineal descendants
of a brother or sister of the decedent," within
the meaning of Article 7120, Class C?
     To argue that they are direct lineal des-
cendants, literally speaking, Is an absurdity,
but that Is not the question. The question
before us is whether or not they are lineal
descendants within the purview of the statute:
shall they be regarded as direct lineal de-
scendants forinheritance tax purposes under the
statute?
     We consider that this is no longer an open
question in this state because the Supreme Court
on several occasions has held that such adopted
children are to be regarded as direct lineal
descendants under similar statutes. This point
was precisely decided by the Supreme Court in
the case of State ex rel Walton v. Yturrla,
204 S.W.315. The 'opinion of the Court, after
first stating that such adopted children are
not direct lineal descendants (a biological
fact which Is beyond dispute) then proceeds to
hold that they are direct lineal descendants
within the meaning of a statute similar to                 .
Article 7120, Class C. We quote from the
Yturrla case:
     "Insofar as it applies to the questions
     presented by this record, Article 7487,
     R.S., subjects to a tax all .property
     within the jurisdiction of the state upon
     .   .




Honorable Rob~ertS. Calvert, page 3.(WW-629)        ,



    its passing by will or by descent to or for
    the use of any personi 'except the father,
    mother, wife or direct lineal descendants,
    of the testator,' ..,~(o) As it was the
    nrivileae of a child of'Danle1 Yturria
    bder A&lcle 7487,   to ha& the property
    within the .jurisdlctionof this state pass
    to him, by will or descent, without payment




     The case of Decker v. Williams, 215 S.W.2d
679, error ref., Is precisely in point. The
syllabus correctly reflects the holding of the
Court and we quote therefrom:
    "Under the inheritance tax statute taxing
    at lowest rates, bequests passing to 'or for
    the use of husband or wife or any 'direct
    lineal descendant' of husband or wiv        '
    quoted phrase means lineal descendants of
    a pre-deceased spouse as nell as of,a
    surviving spouse, Including adopted daugh-
    ter of testator's pre-deceased wife."
    -(Emphasisadded)
     This line of authority has never been over-
ruled so far as we are able to determine and it
is still the law. You are therefore advised
that these adopted children should be classified
for inheritance tax purposes under Article 7l2O,
Class C.
     Article 468, V.A.C.S., Seetlon 9 of OUP
adoption statutes provides that all adopted
children shall Inherit from the adopted parents
and shall thereafter be regarded and held to
be, for every purpose, the child of Its parent
or parents by adoption. The broad term 'for
every purpose' surely must include inheritance
tax purposes.
Honorable Robert S. Calvert, page 4    ww-629)
                                      (‘


                          SUMMARY
     "Adopted children of the decedent's deceased
     sisters are 'direct lineal descendants' of
     the deceased sisters within the meaning of'
     this phrase as used in Article 7120, Class e,
     and must therefore be,classlfled for inheri-
     tance tax purposes under said article."


                          Yours very truly
                          WILL WILSON
                          Attorney General




                                Assist&t
WRS:jlw                                       '1

APPROVED:
OPINION COMMITTEE
George P. Blackburn, Chairman
Ray Loftln
Henry Braswell
Morgan Nesbitt
APPROVED FOR ATTORNEY GENERAL
By: W. V. Geppert
