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Honorable Oeorge A.’ Sheppard
Comptroller of FublIo* Aooouata
Austin, Texas
Dear Sir:                  Opinion lo.   O-5457,

            J              R0:   ClassIfIoatIon  0r foster ohlld          ,i
                                 who has not been adopted In.’ :
                                 aooordanoe with adoption statutes
                                 for Inheritance  tax purposes.
          We are In receipt    of your letter     of July 20, 1943.
The facts therein stated are, briefly,       as follovs:   Decedent
left a vi11 by whioh she devised and bequeathed to her “foster
son” (so described   In the will)    some $15,000.00.    Devisee had
lived with deoedent for many years and had been held out by
her as her son.    Ee had, likewise,    performed the duties of a
son to decedent.    IVo effort appears to have been made by
decedent to adopt devlsee In aooordanoe with our adoption stat-
utes, and It Is certain that decedent did not at any time comply
with such statutes.
           You request   the advice of this department as to whether
such “foster   son” should be placed in Class A, as provided in
Art.  7118, V. A. C..S.,    or vhether he should be placed In Class
E, as provided in Art.     7122,  V. A,. C. S., for the purpose of
assessing   the Inheritance    tax due owthis   estate.
          Article ~7117, V. A. C. S., subjeots all property               :
passing by will or by the laws of descent and distribution
to an inheritance   tax in accordance with ths classification
set out in Articles   7118 to 7122, v. A. C. 3 ., inclusive.

                Article   7118, so far   as pertinent   hereto,   reads
as follows:
Honorable   Qeorge Ii. Sheppard,   Page 2   (O-5457)



           “If passing to or for the use of husband or wife
     or any direct    lineal descendant of husband or wife, 0;
     any dlreot   lineal desoendant or ascendant of the deced-
     ent, or to any leizally adopted ohlld or ohlldren of the
     deoedent, or to the husband of 5 daughter, or the wife
     of a son, the tax s‘hall be one (1) per        on any value
     in exces: s of Twenty-five; Thousand Dollars  $25,000),
     and nc$ exceeding Fifty Thousand Dollars ( 50,000);
     . . . (Emphasis ours).

           Artlole  7119 relates to property passing to the
United States for use In this State.    Artlole 7120 relates    to
property passing to a brother or sister or a dlreot lineal
desoendant of a brother or sister of deoedent.     Artlole   7121
relates  to property Passing to an unole or aunt or a dlreot
lineal desoendant of an uncle or aunt of decedent.      Artlole
7122, so far as pertinent here, reads as follows:
            “If passing to or for the use of the United States
     to or for the use of any other person or religious,         eduda-
     tlonal or charitable   ornanlzatlon   OF institution,.   OF to
     any ‘other person,. OorpoFatlon or association      not lnc1aed
     in any of the orasses mentioned in the OrlglnrAzt           known
     as Chapter 29 of the General Laws of the Second Called
     Qesslon of the Thirty-eluhth    Legislature,    the tax shall be:
         on,any value In exoess of 500 and not exoeedlng $10,000
         on any value in excess of 10,000 and not exceeding
        5,000 . . .‘I (EFphasls ours
           Articles  7118, 7119, 7120 and 7121 enumerate a11 of
the classes mentioned in the !‘Orlglnal Act known as Chapter 29
of the Qeneral Laws of the Second Called Session of the Thirty-
eighth Legislature .‘I
             The only; questloti presented 1s vhether the ,devlsee
in question 1s a legally adopted child” within the oontempla-
tlon of Artlole     7118.   If not, then he 1s some “other person
 . . . . not included in any of the classes mentioned la the
Original Act,”     and 1s subject to the Wovlslons    of Article  7122.
           Our oourts  have consistently held that lk avder to
constitute  an adoption there must be a compliance with the
adoption statutes   in foroe at the time of the alleged adoption.
Honorable   Oeorge H. Bheppard,    Page 3   (O-5457)



Sanders v. Lane, (Corn. App.) 227 9. W, 46; J. M. Ouffey
Petroleum 00. V. Hooks, 106 9. W. 690 %7 Tex, Clv. App.
560, error refuaedj Powell v. Ott, 146 5. W. 10991 Thompson
v. Walta, 159 S. W. 82 error refucledj  Royal Neighbors of
Amerloa v. Fletoher, 240 8. W. 476~ Allso v. Vaden, 112
9. W. (26) 237, error dlsmlrsed,
            It  la true that od oourts have held that where
one taker a ,ohlld     Into hle home ar his own, thereby reoelv-
Ing the benefits     aoorulng to him from auoh relation,       he also
aasumee the duties and obligations        Inoldent theretot and
where justloo     and good faith require It, the oourt will en-
foroe the rights     Inoldent to the statutory relation       of
adoption,    even though there has been no oompllanoe with the
ado tlon statutes.       Cubley v. Barbeej 123 Tex. 411 73 9. W.
(2dy 72~ Jones vI Ouy, 135 Tex. 398, 143 S. W. (2dj 9061
Treme v. Thomas, 161 S, W. (26) 124, These oases, however,
are not authorit?      for the proposition    that a ohlld oan be
t’legallg   adopted’ In the absenoe of oanpllanoe with the
adoption atatuter.       The holding In these oases, on the oon-
trary,, IO based upon the dootrlne of “estoppel        In pals” or
“equitable    estoppel.”    Applying this doctrine the oourts
hold that under wok olrcumstanoer the adoptive carents and
their ~lvles      are preoluded frown assertlag-the    livalldits
of ths adoption prooeedlngs or the status of the adopted
  hlld     In other words, t he adoptive parents and th I
his        are estopped from asserting     the true facts zhgoh
would show that the child 1s not a legally         adopted child.
           We find no Texas case construing the term “legally
adopted  child” as the term 1s used in our inheritance    tax
statute.    (Art. 7118) Other courts, howev’er, have oonstrued
the term.    In the case of Wooster v. Iova State Tax Commls-
slon, 298, 1. W. 922, the Supreme Court .of Iowa had’before~ It
the oonstruotlon   of the term Ilegally adopted child” as used
in the Inherltanoe tax statutes of the State of Iowa.      The
faots la the oase, under the Iova decisions,    created an
estoppel  as against the adoptive parents and their prlvles,
but the adoption statute had not been complied with.      In
holding that olalmant was not a “legally    adopted child”
within the meaning of the inheritance    tax statute the court
said :
Honorable   George Ii. Sheppard,   Page 4   (CM457)


           “The conclusion that Grace 3. Wooster was not
     a legally adopted child of Della B. Wooster appears
     Fnescapable . She did not have the status of an
     adooted child or anv rlRht of lnherltance as such.
     A decree establish&    her rights in the woperty of
     the deceased foster parents could not have thawed
     her previous status to that of adopted child.    The
     principle  Involved in such equitable proceedings l.s
     property recompense measured in the amount fixed in
     the statutes of descent and dletrlbutlon.

            “Appellee argues that the state 1s in, such prlvlty
     ,wlth Della B. Wooster as to be bound by the estoppel
     against her.     In support of this contention It 1s said
      the state allows the party to fix the status of the
      child and should be bound by the status so fixed by
      its authority.    With this statement we do not agree.
     The state, through its legislative       enactments, allovs
     the status of an adopted child to be fixed by one
      method only, towlt, by statutory adoptlon.       When such
      status has been thus fixed     the legally adopted child
      becomes entitled   to the exemption and classification
      provided by statute for property passing to a legally
      adopted child.    Obviously,   when a party falls to take
      steps required by the state to effectuate      a legal
      adoption the estoppel against said party resultinq
      from such non-compliance     with the statute does not
      bar the state from standing upon the facts as they
      actually exist in making classifications      for lnheri-
      tance tax purposes.
            “Nor do we agree that a decree establishing
      appellee’s  rights would constitute  a judgment ln rem
      determining her status which would be binding upon       -
      the taxing authorities.    One reason for this,, 1s that
      appellee never had the status of an adopted child
      and the courts ‘do not undertake to change the status’.
      Such decree would merely establish   her property rights.
             II. . .
‘Honorable   Qeorge H. Sheppard,    Page 5    (O-5457)



             “The oonoluslons    heretofore   reached require a
      holding that appellee Is not entitled          to the exemp-
      U;Fdrate     of inheritance    tax of a legally     adopted
                Thls neoessltates     a reversal.     It 1s suggested
      by apkllee     that children In this situation        are en-
      titled   to the sympathetic consideration         of the oourt.
      To that we fully agree. iHoxever, It 1s not our province
      to legislate.     Apparently,     the Inheritance    tax rtatutes
      now In foroe favor and, therefore,          tend to enoourage
      legal adoptions.      Whether or not the provlslons        In
      question should be broadened to include children not
      legally   adopted Is a questlon for leglslatlve          determlna-
      tlon.”     (Emphasis ours)

             In re Clark's Estate,      105 Mont. '401; 74 Pao. (26)
 401) 114 A. L. R. 496, Is a oase where the oourt passed upon
 the olasslfloatlon      for Inherltanoe   tax purposes and the rate
 of tax to be imposed upon property passing to a ohlld under
 the will of an adoptive parent.         The ohlld had not been
 adopted In oompllanoe with the Montana adoption statutes,
 but under the law of that state the faots were sufficient
 to establish     adoptlon by oontraot or estoppel.      The Montana
 inheritance    tax statute extends the exemption to “a child
 adopted as suoh in oonformlty with law.” The oourt held
 that since the adoptFon,,etatutes       had not been oomplled wlth
 ;:;.;hlld    had not been adopted as such in conformity vlth

             In the case of Sommers v. Doersam, 115 Ohio St.           139,
 152 A. E. 387, the court   says:
             “The expression  ‘legally     adopted’ means in accord-
       ance with the lava of the state in force and effect        at
       the time of the execution     of the will.    These matters
       are, of oourze, statutory.      . .‘I
            And the Supreme Court of Kansas in the caze of
 Ellis v. Nevlns Coal Co., 100 Kan. 187, 163 Pao. 654, in
 construing the phrase “children   and parpV)L,sinclude that
 relation  by legal adoption,”  az the phrase 1s used in, a
 vorkmsn’s compensation act, states:
Honorable   George H. Sheppard,   Page 6    (O-5457)


           “The words ‘legal adoption’,    appearing in the
     last clause of the statute,   signify   adoption accord-
     ing to law; that is, according to’ the statute relating
     to adpptlon.”

           We thlnk that the foregoing     authorities correctly
define and construe the pbrasi “legally      adopted child” to
mean a child adopted in compliance with the adoptlon statutes
in force and effeot at the date of the alleged adoption.         Nor
do we think that the holding of our courts in the cases of
Cubley v. Basbee, Jones v. Guy and Treme v. Thomas, cited
above, militate   against this conclusion,    since those holdings
are predloated not upon the validity     of the adoption, ,but
upon an estoppel to deny the validity      of euoh adoption.
            We,therefore,  ?espeotfully    advise you, and It Is
our oplnlon,   that the beneflolary     in question Is not the
“legally   adopted ohlld” of the decedent,       for the reason that
there was no compliance with the adoption statutes,          in force
and effect   at the date of the alleged adoption.         Consequently,
you should apply the provlslons       of Article    7122 in OlasSlfylng
this beneflolary    and assessing the tax.
            Trusting   that we have fully   answered your lnqulry,
we are
                                         Very truly    yours
                                  ATTORNEY
                                         GENERAL
                                               OF TEXAS




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