PRICE  DANIEL
ATTORNEYGENERAL




   Hon. Robert S. Calvaft                  Opinion   No. V-805
   Comptroller   of Public Accounts
   Austin, Texas                           Rer   Computation of inherit-
                                                 ance taxes at deatk of
                                                 surviving wife on prop-
                                                 erty received under de-
                                                 ceased husband’s will
                                                 which failed to provide
                                                 for living children or
                                                 for posthumous    child.

   Dear Sir:

             You have submitted the complete inheritance tax file for
   the eatate of Hattie Rector Rutherford, and requested an opinion
   of the Attorney Goneral on a question growing out of the following
   facts.

            James T. Rutherford died in 1907, devising all of his
   property to his wife, Hattie Rector Rutherford.     The inventory and
   appraisement   of his estate, which is filed in the office of the county
   clerk of Deaf Smith County, Taxa6. diaclosea     that James IT. Ruth-
   erford had no separate property; therefore what purportedly       passed
   under the will was his share of the community property.       At the
   time of Mr. Rutherford’s     death there were three living children,
   and three months after his death a fourth child, now Mrs. Beulah
   Lee Rutherford Carter, was born.

             Hattie Rector Rutherford died January 5, 1948. leaving a
   will by the terms of which she left her home and the lots and grounds
   used in connection therewith to her daughter, Beulah Lee Ruther -
   ford Carter, and by Paragraph III of said will the tertatrix declared!

             ‘I give, devise and bequeath all of the rest and
        residue of my estate, realty, personalty   and mixed,
        and wherever    located, as followsr

              -A. To my son, James Rector     Rutherford,   an un-
        divided one-fourth (l/4) interest!
Hon. Robert    S. Calvert,   Page   2 (V-805)




           “B. To my daughter. Glenna Rutherford Perciful,
     and -fsicf- undivided one-fourth (l/4) interest;

            “C. To my daughter, Beulah Lee Rutherford Car-
     ter,   and fpic.7 undivided one-fourth (l/4) interest.”

By Paragraph    D the testatrix devised the remaining   undivided      one-
fourth interest in trust for the benefit of her grandchildren.

           Mr. Rutherford,    as executor,   and h&s, Perciful,    as exec-
utrix, have filed an affidavit    for Inheritance Tax Appraisement
which includes in the estate in full what now remains         of their fa-
ther’s interest in the community farm and ranch lands which pur-
portedly passed to their mother under his will.         Mrs. Carter, as
executrix,   has filed an Affidavit for Inheritance Tax Appraisement
which reflects   a reduction from the estate of one-eighth       of the
farm and ranch lands) thereby proportionately         reducing the shares
which passed under the will,      Mrs. Carter claims that she received
a one-eighth   interest in the landa at the time of her father’s      death
by virtue of the following provisions      of Article  5343, Texas Civil
Statutea (Sayles’,   Vol. III 1897)t

           “When a testator shall have children born and
     his wife enceinte,    the posthumous    child, if unprovided
     for by se-t          and pretermitted    by his last will and
     testament,    shall succeed to the same portion of the
     father’s   estate as such child would have been entitled
     to if the father had died intestate,   toward which portion
     the deviseerr and legatees    shall contribute proportion-
     ately out of the parts devised and bequeathed to them
     by such last will and testament.’

          The reasoning of the following cases dealing with either
the above article or its companion articles     (now carried as Arti-
cles 8292, 8393, V.C.S.)  sustain her position;    Pearce v. Pearce,
104 Tex. 73, 134 S,W. 210 (1911); Taylor v. Martin’s      Est., 117 T
302, 3 S.W.2d 408 (1928)I Sankey v. Skelly    33 I+‘.Ld mC,C.A.       9:::
1929)i Burton V. Connecticut   General Cife’fns.   Co,, 72 S.W.2d 3 18
(Tex. 6~. App, 1934, error ref.)! Chatham Pheni% Nat, Bank &
Trust Co, v. Hiatt, 78 S.W.2d 1105 (Tex. Civ. App. 1935, error ref.)

          In 1931 the Legislature     added a proviso to Article   8291,
Vernon’s   Civil Statutes (formerly     the same as Article 5343 above
quoted) to the effect that It would not apply where the surviving
wife is the mother of all testator’a     children in addition to being the
principal beneficiary    of his will to the entire exclusion of all his
children.   However, Mrs. Carter’s        rights were not affected by this
     Hon. Robert   S. Calvert,   Page   3 (V-805)



     amendment,    which,   by well settled    rules,    must    be deemed     to opcr-
     ate prospectively.

                Nor is Mrs. Carter put to an election by reason of her
     claim.   The will disposes    of -all the rest and residue of my es-
     tate.”  A presumption     is always indulged that the testator did not
     intend to dispose of property which belongs to another person.
     44 Tex. Jur. 823, Wills, Sec. 250.      “Therefore,    for a wiI1 to be giv-
     en the effect of an attempted disposition      of property not owned by
     the testator,  it is required that the language of the will conclusive-
     ly evidence such a purpose.”       Avery v. Johnson,     108 Tex. 294, 302,
     192 S.W. 542, 544 (1917).      McDonald v. Shaw, 92 Ark. 15, 121 S.W.
     935 (1909), dealt with an almost identical fact situation.       The court
     held that the claim of the pretermitted      posthumous    child asserted
     after her mother’s     death was not inconsistent    with the terms of
     the mother’s   will which disposed of her property by the use of the
     general descriptive     words “one-half   of all of my estate.”

               You are therefore advised that the report filed by Mrs.
     Beulah Rutherford Carter reflects     the proper basis for the deter-
     mination of inheritance   taxes;   Uur holding on this point is made
     on the basis of the facts before us and limited thereto.    Additional
     facts might necessitate   a different result: for example, Mrs. Car-
     ter ‘s mother might have acquired title to the lands by limitation.

                                        SUMMARY

               Where testator willed all property to surviving
          wife, pretermitted     posthumous    child may assert claim
          at mother’s    death; and said child’s share does not pass
          under mother’s     will, providing facts fail to show title
          by limitation in mother.       Where will devised property
          by use of general descriptive       words - “‘l/4 interest”
          in “all the rest and residue of my estate* - child’s
          claim would not be inconsistent       with terms of will and
          no election would be required.        44 Tex. Jur, 823, Wills,
          Sec. 250.    Therefore    the value of the child’s claim, un-
          less lost by limitations,     should not be included in val-
          uing the mother’s     estate for inheritance    tax purposes.

                                                         Yours    very truly

     APPROVED                                 ATTORNEYGENERALOF                   TEXAS

          5ii?b

G+    IRST ASSISTANT                          BY kh-%,                              a.eL
     ATTORNEY    GENERAL                         Mrs.    Marietta McGr          or Creel
                                                            Assistant

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