                              May   17, 1949


Han, Robert S, Calvert
Comptroller   of Path& Accounts
Austia, Trxas                           Opinion No. V-829

                                        Re:    Classification  for inher-
                                               itance tax purposes of
                                               son of decedent’s   divorced
                                               former wife.

Dear Sir:

           From your letter requesting an opinion of this office and
from   the file attached thereto we have gathered the following facts.

          Otis Phillips,  5r. died testate on August 14, 1947.   By the
terms of his last wilI and testament all of his property was to be
divided equally between his four named children, Clevy Phillips,
his former wife, the mother of his four children, from whom he
was divorced fn 1944, and Arthur Hamilton, the son of Clevy Phil-
lips by a marriage    prior to her marriage   to Otis Phillips, Sr.

          Your question is whether Arthur Hamilton should be clas-
sified for inheritance tax purposes in Class A (Article    7118, V.C.S.)
or Class E (Article   7122, V.C.S.).   To come within Class A Mr.
Hamilton must come within the group provided for by the phrase
“any direct lineal dascendant    of husband or wife . . .” In the event
that he cannot be s9*classified,   the provisions of Class E are ap-
plicable.

           In Opinion No. O-7273, dated June 30, 1946, Hon. Grover
Sellers,  then Attorney General,      ruled that the daughter of a divorced
husband of the testatrix was net a “direct lineal descendant of fief
husband” of the testatrix.      Since that date the consistent     “exec&v<
or departmental     construction”    of this section of the statute has been
in accordanca     with this ruling.   We do not feel authorized to depart
from this construction     unless it has been overturned by the Courts
or unless ft is clearly in error,       It is urged in the brief submitted
in eupport of Ciass A classification        that the facts of this case dis-
tinguioh it from the case presented in Opinion No. O-7273 in that in
this case children were born of the testator and Mr. Hamilton’s
mother.     Various authorities    are cited in discussing    the point that
Hon. Robert   S. Calvert,   Page   2 (V-829)




under the same or similar      facts the relationship  by affinity con-
tinues though the marriage      is dissolved by divorce or death.

          Assuming      without deciding that the relationship   by affin-
ity continued to exist between Arthur Hamilton and Otis Phillips,
Sr. after his divorce from Arthur Hamilton’s        mother, still the
question is whether he can come within the particular         provision
here involved.    We are of the opinion that the wording.of this pro-
vision and the decision of the Court of Civil Appeals in Johnson v.
Davis, 198 S.W.Zd 129 (Tex. Civ. App. 1946, error ref. n.r.e.) pre-
m       the classification     sought. Under the holding of the Johnson
case Clevy Phillips,     the mother of Arthur Hamilton, cannot come
within the provisions      of Class A as a “wife” of the decedent.     This
being so, we are of the opinion that Arthur Hamilton is not a ‘fdi-
rect lineal descendant of . . .fafwife”     of the decedent.    You are
therefore advised that he shoEId be given Class E.classification.

                                   SUMMARY

          The son of decedent’s   divorced former wife should
     be classified for inheritance tax purposes under Class E
     (Art. 7122, V.C.S.).  Cf. Johnsonv.   Davis, 198 S.W.2d 129
     (Tex. Civ. App. 1946, err-pinion                   No. 0-7273.

                                               Yours    very truly,

                                      ATTORNEY         GENERALOFTEXAS




                                                 Assistant

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                                     FIRST ASSISTANT
                                     ATTORNEYGENERAL
