Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN OROVER 8ELLERI AWORH~ QarmAL
.
Hon. Oeorgs & Sheppard
Comptroller or Public Accounts
Austin, Texas Opinion Ho. O-7020
Dear sir: Rot Claesifloatlon or dlrorord
dim ror inh8ri8anoe pUrpO8%?..
Tour roque8t ror opinion on th haa been given Oarsrul oonaldrration b
The recta stated are, brlsrly,
his firat rita, rho had threr o
tins ago, and a oompl~to partlt
munlty property at that time
remarriad, and deoedant in h
quest8 to the tormer nira. wife alaim that she rhould 88 A r0r in- herltanae tax oites the roil
Ler1le v* O’Hal ringrellor t.
Co, v, Riohard State, 61 SW
p&inent here, reads adopted ohild -ohll- lineal desomdaat ~of adopted of the decedent, or to the htw- or wire a son, the tax ) per cent or any value in excess Thouiand Dollar8 ($25,000), 6to.O tlm CWalr 0886, 130 S3(2) 379, me fa0tO ia were these : urn. Hattie O'Hair, the party asssrtihg the
Hun. George Ii, Shrppard - P8gr 2
right to ba plaoad ln OLaa A , 18 tha rurvlving wit8 (not
hat- maarrird) or Will O'Ealr who dlrd in 1919. To them was born a aon, who was liv LT at thr tim8 or the trial. Will O*Hair was the. 8011 or H. J, and Mary O*Halr, who dlrd in 1936 and 1937, resprotivrlg, raoh teetatr, and eaoh leaving a brquest to hfr8. Hattie O%ir.
Thr 00~8, in dbdding 6% thi8 8Umri~& Wire 8hOuld be plaord ti ah88 lib 88idl
“The trend of deolrion and logislation ha8 to givr 8 llboral oonstruotlon of and to.llberal-
be an izr statute in the interest or thoar havlnR some 1bRltlmatr oharaotsr of claim to tbr donor's bounty and thir regardleas or whether there be a legal kin: 8hip by blood or marriage.
” . . . *In thr generality or case8 - - and Ln OhtS8ify- ing for taxing purpose8 onlg~tha gsnez%lity can. be taken Into aooount - - ths oon8iderations whloh would motivate a rather - or loother-ln-law t0 provld8 ior the daughter-in-law would be at least aa cogent after aa before the death of the am. So aleo would br conrideratiorQ3 motlvatlng lsglslatlvs olaselfloation in thL8 regard. The88 oonrldrration8.z are 10 obvious as aot to reqtilre rtatemsnt or elaboration.
We think therefore ths~leglslativa intent to meka no di8tinOtiOIl between the wifa Of a living husband and bbs 8WViVill@ wife of a deceased husband oan ba drawn from tha artlolr without doing violence langu+sr.w to it8 US08 tho eXpmsSiOn "m8 8wXtS itmu Wir8
i.n the 88m 0r widow 8univing tire 0r th0 dOOea8eb. And thi8 i8 JlOt an MOOPIBY)~ U%S Of WirO, rxorpt when, eontaxtually or otherwise, it is olear that it W68 intended to be used ln Ita atriot lexl- oal meaning. ” (Emphaslr addrd)
It cannot ba questioned that the court errived at a most dsslrab1.a result, a reeult which had due regard for the rqultabla oonsideratlons of the cam.
Y¶on, Oearge H. Sheppard - Page )
We 40 not is81 that ths oar4 or Awrioan Generel Xnruranoe aompeny v. Riohardron i8 in point. That war a workntsn~r oompen8atIon ease, and the question was whether the 8UrriViZlg -Rio Or the deoeased rather Or [8] deocra8.d employee, who war not the mother of the employee, and who, after the death Of the 8mploy88'8 rathar remarried, but Wall later divorced, wa8 the stepmother Of the employee with- in the meanlog of Seo. 6a or Art, 8306, as amended in 1923. l&e 1923 amendment to Art, 6306 pormltted the lnoluslon as benerloiarles thereunder "parent8 an4 8&epmOther, without regard to the question of dspon4enoy.” In the race or 8uoh speolrlc provfalon, the Oourt said:
Xe believe it was the legislative
n
intent to ilici the 8tepmother in the sam category in every respeot as the mother In so rar as ooncerns the benefits of the Actr and that for this purpeaa the relation was no more sorer,84 by death or the rather in the one case than in the other. , . *
Nor do we feel that StrlngfellOw v, State can ar- teot the question now before ~8, That was a murder oase wherein one or the ground8 0r the motion ror new trial ohallenged the oompCtenoy one Hanks, a juror. Hank8 an4 the 4404a8ad had married rirat 4OU8iJl8l the wire 0r deoeased ha4 die4 somr year8 prior to the trial, leaving or th arrinal relatIonship, the Court tW0 SOlI a8 i8SUS. 8ald t *Exoept ior the iesue resultant marriage betwren deoeased an4 his wife, the death or aaid wire Would have tetinated the rslatlon- ship. Under authoritier, it seeme that by rea8on of the lseuo the relationship Is extended beyond the death of the rpouee. Undsr the-saw, as it [18] underrtood in ttii8 by wires their ma8on 0r riret iou8lna. relate4 by being arrlnltg. , , , The oontentlon by the 8t4t4, m&8 and 4eceaae6, war0 stat. that the relationbhlp ceased on the death of the wife oi the decaarsd wocld be well taken in the l baenoe or issue ot the marriagei but as ap- plied to this oase the Ineistmsnt is incorrect, beoaase or thr birth end 8LlrT1Ving or the children Hon. Georgs B. Sheppard - Pace 4
or the marriage. The proporltion that the re- latlonehlp exist8 by reason Or the 188~s is 8up- ported by the weight of authority. *
It oan be 8een reedlly that thr rule8 arrinlty and Interest, leading to prejudioe or pOesIb prejudloe of a .Juror In a murder oa8e can heve but little bearing upcn of a taxi= 4speOielly when the the oonetruotlon statute, $aXing Etatut 18 as 8pbOtriO a8 one ths 08. [18] before La8 ue ooneider the erfect of the divorce upon the relation or the deoedent and his first wife in the ease before us. It is said In 15 Tex. Jur. 560, sea. 93:
*In Tsxas, a decree of dlvoroe la absolute from the date of its entry unless set aside or ap- pealed rrom. It has the leRa1 8fraCt Of ooncluslve- ly eatabllehlng the rtatus the partier, ae 8ingle dt - operating, It has been 8-d 1 s nurriaR8 r616tiOu.” (%~piaeir~i~d~~) i!!i%%’ In Stuart v. Cole, 92 SX 1040, the oourt said that a deorae of divoroe “terminates the marriage relation.n
Regarding the relative status of the father an4 mother toward their ohll4ren after divorce, end the effect or 4Ivoroe upon the 8tatur of the wife, the Court in Gully v. Gully, 184 SW 555, 559, said:
When a divorce takes place he (the father) la rtrlpped or this mpsrlor authority, the Wife Is ezmnoipate4 from her rubordination, and .ell the rlRhtts or a rem8 s0le.~(2 with
I.n Shook v. Shook, ‘145 SW 682, which was a dis- put8 between divorced parent& over rerponribility for rup- ;;b;,0r ohll4ren, and the 8i3tU8 Of the parents, the Court “Arter thr rendition of the judgment for
divorce, J. 0. Shook’8 8tatue wae tbat or an un- mrrled man, the relation with his wife having been severed, and she then oonstituted no part of h$s iably. *
89 Hon. George H, Sheppard - Page
The exlstenos of issue, vel non, has no bearlng whatever upon the finality of a deorre of dlvoroe. The dlvoroed wire thereattar is a rem4 sole, ir no part 0r the family oi the husband, ha8 no obligation to him, nor Both are 8Ingle person8 ior hss he any obligation to her.
all purposes. The question8 ror 0r 188ue, or llabillty support of tha 155~3, have no bearing on the case berom U8.
Under these authorities, the divorced wife ia not a pareon “having come legitimate character of claim to the donor’s bounty”, and consequently there Is no occaslcn for a liberal construction of Article 7118, as- suialng arguendo that there is room for construotlon Or the nzanlng 0r “wife” to attempt to’inclu5e the for:ner wife within the class~flcation thereln provided for.
A divorced wife cannot be Inoludsd within the designation “wire** without doing violence the to language of It is the opinion statute and to legislative intent.
of this department, therefom , that the divorced wife properly should be claslified as such ‘other personn referred to In Article 7l22, and that she is subject to the provisions thereor.
Yours very truly, ATTORNZY CZNXRAL OF TEXAS By d&f&
Arthur L. Moller Assistant