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     Hon. Robert S. Calvert              Opinion No. WW-481
     Comptroller of Public Accounts
     Capitol Station                     Re: Proper classlflcation
     Austin, Texas                           for inheritance tax
                                             purposes of lllegltl-
                                             mate son of deceased
     Dear Mr. Calvert:                       brother of decedent.

           You have requested the opinion of this office as to
      the proper classification for Inheritance tax purposes of
      the Illegitimate son of a deceased brother of a decedent
      who named said son as a beneficiary of his will. You have
      also advised us orally that there has been no assertion of
      legitimation of the son by the brother prior to his death.
           Article 7120-Class C, Vernon's Civil Statutes, reads
      in part as follows:
           "If passing to or for for ,@icJ the use of a
           brother or sister or a direct lineal descendant
           of a brother or sister, of the decedent, the tax
           shall be . . .'
           It is undisputed that if the beneficiary of the will
      in this case cannot come within Article 7120, V.C.S., the
      beneficiary must be classified under Article 7122-Class E,
      V.C.S. Thus, the sole question for determination is whether
      an illegitimate child is a "direct lineal descendant" within
      the meaning of Article 7120.
           At common law an lllenitimate child could not Inherit.
      Berry v. Powell, 105 S.W. 345 (Tex.Clv.App. 1907); certified
      question to Supreme Court, 101 Tex, 55, 104 S.W. 1044 (1907);
      1 Blackstone C&m. 459. Indeed, before the passage of nu-
      merous state statutes changed this general rule, the ille-
      gitimate child was flllius nulllus, the child of nobody or
      filllus popull, the child of the people. A bastard had no
      father known to the law, and not even a mother. See VIII
      Baylor Law Review 110, "Legitimation of Bastards, etc."
            In Whorff v. Johnson, 58 A 2nd 553 (Me. Sup. 1948),
       3 A.L.R. 2d 166, the question for decision was whether the
       illegitimate daughter of the testatrix was to be treated as
Hon. Robert S. Calvert,   page 2,. Opinion No. ~~-481


a "lineal descendant" and "child" with the resulting favor-
able classification for Inheritance tax purposes under the
Maine statute. The court pointed out that the purpose of
the common law rule was to restrain and control unlawful
cohabitation by making lifetime embarrassment for the children,
but that the modern tendency was to break away from such
harsh treatment of the innocent son or daughter and that
the statutes in Maine tended to mitigate the unreasonable
severities of the common law. The Mainestatute provided
that an lllegltlmate child was the heir of his parents who
intermarry and that any such child born at any time was the
heir of his mother. If the father of an lllegltimate child
adopted him or her into his family, or In writing, acknowledged
before some justice of the peace or notary public that he was
the father, such child also becomes the heir of his or her
father. In such cases, the child and Its Issue would Inherit
from its parents respectively, and from their lineal and
collateral kindred, and these from such child and Its Issue
the same as if It were legitimate.

     The court stated that the purpose of the above summarized
legislation was to create something which did not previously
exist. It was recognition of the mother of the Illegitimate
child. It was recognition of the child. It made the child
the heir of the mother, and by making the child the heir, it
made a child who had not been previously recognized as a
child:
     When the Maine legislature passed the Inheritance tax
statute, it had knowledge, said the court, of its prior
statutes and the decisions affecting the status of all
children whether illegitimate or born in lawful wedlock.
Since the legislative department is supposed to have a con-
sistent design and policy and to intend nothing inconsistent
or Incongruous, the court reasoned that when the legislature
stated that "a lineal descendant" was in Class A, It neces-
sarily had the Intention, In view of the existing leglsla-
tion, to Include the issue of an unmarried mother. Under
the statute the property of the mother passing to her llle-
gitimate daughter passed "the same as if legitimate," and
so passed to her child as "lineal descendant."
     Thus it is clear that the sole reason for the holding
of the court In the Whorff case was the existence of a
statute providing that an illegitimate child shall be
considered as the heir of the mother, and shall inherit In
the same manner as if born in lawful wedlock. It was on
this ground that the court predicated its holding that the     .
Illegitimate child was a "lineal descendant" and "child"
Hon. Robert S. Calvert,   page 3,   Opinion No. ~~-481



of the decedent within the meaning of those terms as used
in the provisions of the controlling inheritance tax law
respecting exemption and tax rate.
     Section 42 of the Texas Probate Code, V.A.T.S., sets
out the inheritance rights of illegitimate children and
reads as follows:

          "For the purpose of Inheritance to, through,
     and from an illegitimate child, such child shall
     be treated the same as If he were the legitimate
     child of his mother, so that he and his Issue shall
     Inherit from his mother and from his maternal kln-
     dred, both descendants, ascendants, and collaterals
     in all degrees, and they may Inherit from him. Such
     child shall also be treated the same as if he were a
     legitimate child of his mother for the purpose of
     determining homestead rights, the dis'ributlon of
     exempt property, and the making of family allowances.
     Where a man, having by a woman a child or children
     shall afterwards intermarry with such woman, such
     child or children shall thereby be legitimated and
     made capable of inheriting his estate. The issue
     also of marriages deemed null in law shall never-
     theless be legitimate."
     The above-quoted statute is, in man'?respects, similar
to the Maine statute. It is noteworthy thaz In Texas the
illegitimate child is given full inheritance rights Insofar
as the mother and all of her relatives are :oncerned. How-
ever, our statute, as does the Maine statute, requires a
specific act on the part cf the father to legitimate the
child. No such legitimaticn was accomplished in the case
we are here considering. Therefore, the illegitimate child
has not been made an heir cf the decedent!s brother, and
in line with the reasoning of the court in the Whorff case,
supra, cannot be considered the "lineal descendant" of the
brother of the decedent within the meaning ;f these words
as used in Article 7120.

     Although this precise question has never been passed
upon by our courts, analogous situations have been con-
sidered in two cases concerning classification fcr inheri-
tance tax purposes of adopted children and their direct
lineal descendants. The first of these is State v. Yturria,
109 Tex. 220, 2Ob S.W. 35 (1918). In that case the court
held that the decedent's legally'adopted children came with-
in the exemption then provided by Article 7487, R.S. (1911)
for "direct lineal descendants" of the decedent but refused
Hon. Robert S. Calvert, page 4,   Opinion No. W-481   *



to allow an exemption for the property which passed under
the will to the children of the adopted children. The
court expressly held that the adopted children were not
"direct lineal descendants" of the adoptive parent but
reasoned that the child was entitled to the same privilege
(exemption) under the inheritance tax statutes as natural
children of the decedent because, under the terms of the
adoption statutes in force at the date of adoption, the
adopted children were entitled to "all the rights and
privileges both In law and in equity of a legal heir of the
party so adopting him" with certain limitations. Since
these rights and privileges were limited to the adopted
party, the children of the adopted children could not come
within the exemption then provided for.
     In Decker v. Williams, 215 S.W.2d 679 (Tex.Clv.App.
1948, error ref.), the court held on the basis of the Yturria
case that the adopted daughter of a deceased first wife of
the decedent was entitled to Class A classification as a
"direct lineal descendant of . . . wife" of the decedent
but that the children of the adopted daughter did not come
within this provision.
     The rationale of these decisions is consistent with
the conclusion we have heretofore reached that the illegitl-
mate child of a brother of the decedent must be classified
for inheritance tax purposes under Class E, Article 7122,
V.C.S.
                          SUMMARY
          The Illegitimate child of a brother
     of the decedent must be classified for
     inheritance tax purposes under Article 7122,
     V.C.S.
                            Very truly yours,
                            WILL WILSON
MMP/ba                      Attorney General of Texas
APPROVED:
OPINION COMMITTEE:
Geo.P.Blackburn,Chairman
                               Assistant
J. Arthur Sandlin
L. P. Lollar
Wallace Finfrock
Linward Shivers
REVIEWED FOR THE ATTORNEY GENERAL
By:   W. V. Geppert
