Case Information
*1 ‘ E ORNEY GENERAL OP~EXAS
May 20, 1959 Honorable Robert S. Calvert Opinion No. W-626 Comptroller of Public Accounts
Capitol Station Re: Classification for Austin, Texas inheritance tax
purposes of alleged Dear Mr. Calvert: adopted child.
You have requested that we advise you as to
whether Marian Jean Dooley Lee (hereafter referred to as Marian) should be classified tax purposes under the provision of Article 7118--Class A, Vernon's Civil Statutes, for a "legally adopted child.
decedent" or whether she should be classified under Article 7122--Class E, V.C.S., which provides the appro- priate class for all persons not specifically covered by special classification provisions.
On July 5, 1917, the New York Foundling Home
placed Marian who was then two and one-half years old in the home of Leslie B. Dooley and his wife, Katherine Marie Dooley (hereafter referred to as Decedent). Marian re- mained with the Dooleys until the time of her marriage.
Prior to 1936, the Dooleys made no attempt tu
adopt Marian but held her out to be an adopted daughter and so considered her. On December 2, 1936, Mr. Dooley and the Decedent executed a deed of adoption which was duly acknowl- edged and recorded and which stated that they by said in- strument adopted~ Marian "a child of parents unknown to us, now twenty years of age (and who has continually resided with us since July 1917) as our legal heir, hereby, c,on- ferring on said Marian Jean Dooley all the rights and privi- leges, both in law and equity, appertaining to this act of for all purposes retroactive and to be effectual from the 5th day of July, 1917." The Dooley,s were advised by, their attorney that upon filing of the deed of adoption in the Deed Records of Dallas County, Texas, Marian had been legally~ adopted by them.
The Deced~ent died testate March 14, 1956. Urder the terms of her will she devised certain properties to Throughout the will Marian was referred to as her Marian. "foster daughter."
, Honorable Robert S. Calvert, Page 2 (Opinion No.
We will first consider whether under the above
recited facts, Marlan was the “legally adopted child” of the Decedent. From the time the first st tute was en- the Act of 1931 5 until
acted in Texas repealed all adoption laws then in effect, adoption was accomplished by the means of a written instrument, in the nature of a deed, which was signed by the adopting person and authenti- cated or acknowledged as deeds are required to be. The deed was required to be filed in the office of the county clerk, such filing being essential to the execution instrument and constituting the act of adoption. 1 Tex. Jur.Supp. 137, 138, Adoption, Sets. 15, 16. The Act of 1931 repealed all adoption laws then in effect and substl- tuted as a complete method of adoption a r.adically different 134, 135, Adoption, 1 Tex.Jur.Supp. Sec. 8. procedure. The new act and its later amendments make the act of adop- tion a judicial function. 1 Tex.Jur.Supp. 141, Adoption, Sec. 21. Various acts pertaining to the validation Acts 1934,
adoptions have been passed by the Legislature. zi;d Leg., 2nd C.S., p. 93, ch. 39, B 1; Acts 1937, 45th 1324, ch. 490, 8 2; Acts 1947, 50th Leg., p. 1016, 8 2; Acts 1951, 52nd Leg., p. ch. 249, 8 4.
ch.‘&3t;
However, these validation acts apply to adoption papers signed prior to August 21, 1931, and to adoption de- crees theretofore entered by the District Court in Texas based on proceedings which conformed to the adoption statutes “as thereafter or hereby amended.” Since the purported case was executed at a time adoption deed in the instant 1 when the only method for accomplishing adoption was the ju- dicial method, the deed itself amounts to a nullity, and there is nothing to validate. Therefore, at the date of the death of the Decedent, Marian was not her
Subsequent to the Decedent’ 8 death, Marian insti- tuted suit in the 1Olst Judicial District Court of Dallas County, Texas, for a declaratory judgment naming as defen- dants her foster father and all the heirs of the Decedent and next of kin of Mr. Dooley. In this suit, she sued to 1 Pas. Dig. Art. 31.
2 Acts 1931, 42nd Leg., p. 300, ch. 177. *3 (opinion No.
have herself declared the adopted child of Mr. Dooley and the Decedent, Judgment was rendered in this suit on February 20, In the judgment the court made certain Findings Incorporated in the Findings of Fact and Conclusions of Law. of Fact are the facts previously stated. The court also found as a fact that Marian was "held out to be the adopted daughter" of the Decedent and her husband and that the !'Deed of Adoption was intended to be merely a confirmation of their previous act of equitable adoption. . ."
The cqurt'.concluded as a matter of law that "By such adoption procedure and by, holding out to the world that the said Marian. . . was their adopted daughter, the said Leslie B. Dooley and his said wife have equitabl said Marian. . .' (Emphasis supplied throug ou 'd However the court further concluded that "The said Marian. . .is i; legal effect the legally adopted child of Leslie B. Dooley, .and was the legally of andhis wife,. . the~~said Katherine Marie Dooley and Leslie B. Dooley at the time of the death of the said Katherine Marie Dooley."
On the basis of its Findings of Fact and Conclu- sions of Law, the court decreed that certain questions con- tained in Plaintiff's Original Petition be answered in the following way.
Question (2) ", .did not Leslie B. Dooley and his said wife in legal effect adopt Marian Jean Dooley, Lee bye their act of acceptingcustody of the said Marian. .in con- sidering and treating her always as their adopted daughter, and in holding out to the world that she was in fact their adopted daughter?" Yes.
Questions (3) and (4) pertained to the Dooley's
intention in executing the adoption deed and the effect The court concluded in executing such such execution. papers the parties intended to confirm the previous act of adoption and that such was the effect of said execution. to Question (5),
In response concluded that Dooley and his wife intended to take Marian into their privileges and duties of a family and give her the rights, child and heir and that said child "in legal effect" had "the rights, privileges and duties of a child and heir." to Questions (6) and (7), the
In response affirms the fact that Marian had been considered by all heirs and next of kin "to be in effect le all =d, w wand adopted daughter of Lesne7.a that Marian "consmered herself to be in legal effect adopted daughter" of Dooley and his-wife. *4 Honorable Robert S. Calvert, Page 4 (Opinion No.
In response to Question (lo), the court found that the attempted compliance with the adoption laws coupled with holding Marian out to the world as their adopted daughter was followed "by reliance thereon and performance thereto" by Marian.
In response to Question (ll), stated that it would be inequitable for Dooley and his wife and their privies to deny the adoption of Marian and her status as an adopted daughter.
However, Question (12) reads as follows: "Is
Marian Jean Dooley Lee
child of Leslie B.
answered this question in the affirmative.
We will now consider whether this judgment effec- tuates Class A classification for Marian. is evident ~, from the foregoing summation of the judgment that certain portions thereof are inconsistent. The judgment might well be construed as a decree tnat Marian was a child adopted by On the other hand, the court's conclusion estoppel. of Dooley and the De- Marian was the "legally" cedent is inconsistent with a decree of adoption b?? estoppel. A decree of adoption by estorpel establishes the property so far as the rights of the child,adopted by estoppel adoptive parents and their privies are concerned. Such de- crees do not purport to change the status of a child adopted by estoppel. Since adoption was unknown to the common law, the status of an adopted child can only be created by com- pliamth the controlling statutes. 1 Tex.Jur. supp. 132, Adoption, Thus if judgment decrees that Marian was a child adopted by estoppel, she cannot be classified under the Class A provision for a "legally~ in view of the per curiam adopted child. .of the decedent" opinion of the Supreme Court in Johnston v. Calvert, S.W. 2d (1957). Tex. -,
The Court of Civil Appeals in Calvert v. Johnston, S.W. 2d 394 (1957), held that the alleged adopted son had failed to prove an adoption by estoppel and that he was therefore properly classified tax purposes under Class E--Article 7122. Mr. Justice Hughes concurred solely on the ground that the alleged adopted child was not a "legally the decedent" within meaning of Article Class A.
The Supreme Court refused the Application for Writ of Error with the notation, "no reversable error." We quote the Court's per curiam opinion which reads as follows: *5 . Honorable Robert S. Calvert; Page 5
"We agree with the view expressed by Mr. Justice Hughes DO4 S.W. 2d 398 that Grant Llndsey~, Jr. was not a 'lega < ly child' within the meaning of Arti- cle Class A, Vernon's Ann. Tex. Stats. See Wooster v. Iowa State Tax Commission, Iowa 797, 298 N.W. 922, 141 A.L.R. 1298." However, if the effect judgment of the court is to decree that Marian had been legally adopted and had the status of a legally of the Decedent, is the State bound by this decree to place Marian within Class A classification for a "legally adopted child.
the decedent" tax purposes7
As a general rule, a judgment determining personal status is conclusive in subsequent litigation involving C.J.S. 224, Jud,gments, Set, 734. This same issue. is so because if a proceeding is designed primarily to determine status it is ordinarily a proceeding in rem and conclusive as a judgment in rem upon every person interested in or affected Freeman on Judgments by the status thus adjudicated. (5th Ed., 1925) 3145, 3146, However, we quote the fol- lowing excerpt from the above cited section of Freeman:
.But in order that such a proceeding shall be one'in rem it Is generally, if not always, neces- sary that it should contemplate and be intended to create or effect a change in the legal status of the person in question. is not enough that sta- tus be incidentally, even though necessarily, passed upon in proceedings which are purely personal In their nature or which are in rem as to some other aspect of the status of such person. In other words, an adjudication which creates or changes legal status is rem but one which finds or adjudicates the past or present existence of a particular status is not in that aspect a judgment in rem but must be treated like any other judgment inter partes." Since it is evident that' the judgment in the in- stant case did not purport to create or change Marian's legal status but rather was an adjudication of her past and pres- ent status, it is doubtful, to say the least, it should be treated as a judgment in rem but rather it should be treated like any other inter partes with the result that the State, not being a party, would not be bound.
Even if this distinction were not recognized, there is authority to the effect that "A judgment In rem, while *6 6 binding and conclusive on all private rights, does not con- clude the State, its public agencies and mandatories, unless the law authorizing the proceedings contemplated such a re- sult, since the State without its consent, express or im- 3 Freeman on Judgments, 5th plied, is not subject to suit." Ed., 1925, 3115, Sec. 1527; 1 Freeman on Judgments, 1088, 1089, 506; 26 Tex. Jur. 209, Judgments, Sec. in Prairie Oil and Gas Co. v. State, 214 S.W. was suggested 363 (Tex.Civ.App. 1919) modified,other points (Com.App.), 231 S.W. 1088 (1921), &at any statute which would make a judgment rendered in a suit to which the State was not a party binding upon the State would be violative of the due process clause provisions of both the State and Federal constitutions.
At least two courts have held that the State in collectina taxes is not bound by nrior ad.iudi- cations tz which it was not a party. In Mcbokgald v.~"First Federal Trust Co., 199 P. 11 (Cal.Sup. 1921) the h usbdnd -- conveyedcertain community property without the wife's con- sent.. After the husband's death the wife successfully~ sued to recover her community interest l!hip"? under California law she obtained as the heir of the husband; therefore, the property in question was liable for an inheritance tax. At page 12 the court said:
"The right of the state of Califo?nia to an inherit- ance tax was not litigated in that proceeding, state was not a party thereto, and the in favor of the wife has no bearing upon the right the state of California tJ recover an inheritance tax except as it shows tnat the widow has success- fully maintained her right to succeed to the com- munity property awarded to her by the judgment." In Hasbrouck v. Martin, 183 A. 735 (Perogative Court of N.J. 1936), the decedent had made certain bank de- posits and the ownership of the deposits was litigated after her death. In suing to collect the inheritance taxes, tax commissioner did not dispute the correctness judg- At page 737 said: ment adjudicating title.
"The State is of course..not bound in this proceeding by the result in the chancery suit to which it was In re Dorrance's Estate, in nowise a party. Cf. 115 N.J. Eq. at page 272, A. 601; affirmed Dorrance v. Martin, A. 902, 13 N.J. Misc. 168; Estate, 1.18 N.J. Eq. 599, at page In re Fischer's 605, 180 A. 633; Freudenrich v. Mayor, etc., Fair- view, N.J. Law, 290, 176 ~~162.
"It would therefore have been open to the commis- sioner in this tax proceeding to find, if the evidence before him so indicated, that no valid trusts had been created, He made no such finding, however, and makes no such contention on this appeal; he concedes that valid trusts were created; and the evidence in the record leads to the same conclusion."
For the reasons stated in these opinions as well as those heretofore given we are of the opinion that Marian cannot be given Class A classification as a "legally adopted child" of the Decedent. You are therefore advised that she must be classified for inheritance tax purposes under Class E.
SUMMARY Where a foster daughter of the Decedent was not adopted in accordance with the con- trolling statutes, a judgment rendered subsequent to Decedent's death declaring said foster child to be the adopted child of the Decedent and Decedent's child adopted by estoppel does not bind the State in classifying the alleged adopted child tax Said child cannot be classified under purposes. Article V.C.S., as a "legally of the decedent" but must be classi- fied under Article 7122, V.C.S.
Yours very truly, WILL WILSON Attorney General MMP:bct
APPROVED: Assistant
OPINION COMMITTEE:
Geo. P. Blackburn, Chairman
William E. Allen
Henry (3. Braswell
Lawrence Jones
Raymond V. Loftin, Jr.
J. Milton Richardson
REVIEWED FOR THE ATTORNEY GENERAL
By: W. V. Geppert