Untitled Texas Attorney General Opinion ( 1949 )

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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