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Hon. Robert        S.   Calvert                      Opinion      No.   WW-9
Comptroller        of   Public      Accounts
Capitol    Station                                   Re:      Classification        for
Austin,    Texas                                              inheritance        tax purposes
                                                              of a deceased          daughter’s
                                                              former       husband      who had
                                                             ~remarried         and been
                                                              divorced       prior    to decedent’s
Dear    Mr.    Calvert:                                       death.

                 You have     advised    us of the ‘following         facts.      Jessica        S.
Pike     died    on March      16, 1956.      Under     the terms       of her      will,    she
devised       and bequeathed       all of her    estate     to her daughter,            Phyllis
Pike      Cahn and to David         D. Cahn,     or the survivor          of them.         At the
time     of the execution        of the will,    David     D. Cahn was           married        to
Phyll.is     Pike    C&n,    who died     on September         2, 195 1.        David     D. Cahn
remarried          on November       5, 1954, and was         divorced       from     his second
wife     on June 23,       1955.    He was     unmarried        on the date of death               of
Jessica       Pike    Cahn.

              You    state   that the attorneys      for   the estate        have     taken    the
position    that David     D. Cahn should        be classified       for    inheritance
tax purposes       under    Class    A - Article     7118,    Vernon’s         Civil    Statutes,
and request      that we advise        you as to the proper           classification.          If
Mr.    Cahn   cannot     be classified    under    Class    A, he will         necessarily
be classified      under    Class    E - Article     7122,    V.C.S.

               The      pertinent     provisions       of   Article     7118,   read    as   follows:

               “If passing    to or for             the use of . . . the husband
       of a daughter,      or the wife             of a son,  the tax shall be
             ”
       . . .

             Mr.   Calm     is thus srcking    to come   wltlrin    thr Class-A
group  provirlrd    for   a “husband    of a daughter.     . .”    This    provision
and the roroll,ary      provision   for  “wife   of a son”    hove    been   construed
by our  courts.

            In Lewis   v. O’JIair,    130 S.W.Ld    379 (Tcx.Civ.App.      1939)
the court  Jwld that the surviving      wife    or widow   of a deceased     son
of thr decedent   came    within   the provision    above   quoted    for a “wife
of a son”.    We quote    the following    excerpt    from   page  379:
     Hon.    Rob,:    t S.   Calve   r?   page   2 (WW-9)



.~
                     “Appellec,      Mrs.    Hattie    O’Halr,         the party    assert-
            ing the right       io   be placed      in Class        A,    is the surviving
            wife   (,not having      remarried)       of Will       O’Hair,     .who died        in
            1919.”     [Emphasis       suppllex}

                    In Calvcct    v. Fisher,     259 S.W.2d      944 !Tex.Civ.App.,        1953,
     error    ref.)   !~h~%~~~~~erned                 wi‘h    ihr following      facts.   The
     decedent’s      daughter,:   wlio predeceancd      hrr,    had been      married   to one
     of the bcnrliciarics        nomcad in ihc’will.       Subsequent       t.o the daughter’s
     death   and prior      to the death     of 1.1~ drc&ien!..    f.hr beneficiary     had
     remarried       and was married         at the dai.k* o.! ihc deat.11 of t.he decedrnt.

                     The   court  held tha.! !.hr hzncti.iciary                should    be   classified
     for    inheritance     tax purposes    under   Class     E             rather    ihan    under      Class
     A.     At page     045 the court    said:

                       “The   sole question       p-rscn!.ed     by rh~s appeal
             is:    Did f.he tart    l.hat oppellec        remarried    during   the
             lifetime     of the testatrix       and alter     the deaih   of his
             wite     Hazel   Amanda     dr.sttoy     his sta+us     as ‘the
             husband       of a daughirx.’     of the tesfaf:r-ix?’

                    In holding       thai. the status        of. ‘hrisband         of a daughter’         was
     deskoyed       by remartiagc-         during      the decrdeni’s           lifeiimc,      the court
     pointed    out tzhat bot.h ihe O’Hair              case    and --. Johnson       v. Davis,       198
     S;W.2d     IL9 (7cx.Civ.App.~&~~                 CIVLV      reI..,n.r.e.)       recognize       Lhat
     Articlc     71 I8 uses       the words      ‘rrife-     and “h.usband’           ,in the scnsc       of
     surviving      wiI’c. or huskand,        .vidcw      or suitlower.          The     court    rkasoncd    ’
     fha? ‘he Ix, rm       -‘wiclowcr-     she ;rld ha: given          ihe sense        in whikh      it is
     ordinar   ilk used and tha!. the ac.cep+d                  meaning        of the word         is “a
     man who has lost. his wile               by dcxai.1~ and has not. remarried.”

                      We think   t.hat ihe       Calveri     cabe      is   con!.rolling      since    the
                                                 - v--e.
     Sllpreme        Court refuse-d    wrii.     or cr7.0~‘.
Hon.   Robert      S.   Calvert,    page   3 (WW-9)




                decedent’s     death,    should   be classified
                f~or inheritance      tax purposes       under     Class     E -
                Article    7122,   V.C.S.     Calvert     v. Fisher,       259
                S.W.2d     944 (Tex.Civ.App.,         1953,   error     ref.).
                                                                .’
                                                  Yours       very     truly,

                                                  WILL     WILSON
                                                  Attorney    General           of   Texas



                                                  By       &&/L&/a                   P2      d+&+?7&   @-

                                                          Marietta      McGregor          Payne
                                                          Assist.ant

MMP:cs

APPROVED:

OPINION         COMMITTEE
H. Grady        Chandler,      Chairman
