Lewis v. O'Hair
| Decision Date | 31 May 1939 |
| Docket Number | No. 8788.,8788. |
| Parties | LEWIS, Assessor, et al. v. O'HAIR. |
| Court | Texas Court of Appeals |
Appeal from Travis County Court; Geo. S. Matthews, Judge.
Action by Hattie O'Hair against Frank J. Lewis, Assessor, and others, to recover inheritance tax assessments paid under protest. From an adverse judgment, defendants appeal.
Affirmed.
Wm. McCraw, Atty. Gen., and Jno. J. McKay, and Charles N. Avery, Jr., Asst. Attys. Gen., and Gerald C. Mann, Atty. Gen., and Cecil C. Rotsch and Claude Boothmann, Asst. Attys. Gen., for appellants.
Walter C. Woodward and Rob O'Hair, both of Coleman, for appellee.
This case presents the sole question whether the surviving wife of a deceased son is included in "wife of a son" as that term is used in V. A. R. C. S. Art. 7118, which designates the persons who are placed in "Class A. Husband or wife or their decendants or ascendants," for the purposes of the Inheritance Tax Law (R. C.S. Title 122, Chap. 5, Vernon's Ann.Civ. St. art. 7117 et seq.)
The facts, which are without dispute, are these:
Appellee, Mrs. Hattie O'Hair, the party asserting the right to be placed in Class A, is the surviving wife (not having remarried) of Will O'Hair, who died in 1919. To them was born a son, who is now living. Will O'Hair was the son of H. J. and Mary McClellan O'Hair (referred to respectively as the mother and father), who died respectively in 1936 and 1937, each testate, and each leaving a bequest to Mrs. Hattie O'Hair; that of the mother being $5,000 in money, and that of the father $4,500 in money and property. The executors of these wills complied with the statutory requirements of filing with the comptroller and county judge inventories of the estates and lists of the beneficiaries. These officials held that appellee fell in Class E (Art. 7122) of the Inheritance Tax Law, and assessed each estate 5% of the amount of the bequest in excess of $500; that is, $225 (5% of $4,500) on the mother's bequest, and $200 (5% on $4,000) on the father's. These sums were paid under protest under V.A.R.C.S. Art. 7057b, and this suit was seasonably brought by Mrs. Hattie O'Hair under said article to recover back the sums so paid. The trial court's judgment awarded the sought recovery, and the defendant officials have appealed.
The pertinent portions of Art. 7118 read: "If passing to or for the use of husband or wife, or any direct lineal descendant of husband or wife, or any direct lineal descendant or ascendant of the decedent, or to legally adopted child or children, or any direct lineal descendant of adopted child or children of decedent, or to the husband of a daughter, or the wife of a son, the tax shall be one (1) per cent on any value in excess of $25,000," etc.
Appellants contend that the expression, "wife of a son," (as also "husband of a daughter") was intended to bring within Class A those legally related to the donor by affinity at the time of the donor's death; that since the word "wife" both lexically and popularly means a woman actually united to a man in lawful wedlock, and since death severs the bonds of matrimony and the relation of wife ceases upon the death of her husband, she being then no longer wife but widow; the relation by consanguinity to the parents of her deceased husband no longer exists, and she is not included within the expression "wife of a son" as that term is used in Art. 7118.
They further contend that Art. 7118 is in the nature of a tax exemption; that such exemptions are strictly construed; and that the party claiming them must bring himself strictly and literally within the language of the exempting statute. Citing Morris v. Lone Star Chapter No. 6, R.A.M., 68 Tex. 698, 5 S.W. 519, and other cases of similar import. These decisions relate to exemptions from taxation generally.
Appellee contends that the proper rule of construction here is that laid down in 61 C.J., p. 1626, § 2413, reading:
The text seems to be supported by the weight of authority, although some expressions to the contrary may be found. See McDaniel v. Byrkett, 120 Ark. 295, 179 S.W. 491; Estate of Ullmann, 263 Ill. 528, 105 N.E. 292, 51 L.R.A.,N.S., 1075, Ann.Cas.1915C, 321; Cupples' Estate, 272 Mo. 465, 199 S.W. 556; Smith v. Browning, 225 N.Y. 358, 122 N.E. 217; Manning v. Board, etc., 46 R.I. 400, 127 A. 865; State ex rel. v. Clayton, 162 Tenn. 368, 38 S. W.2d 551.
This rule is based upon the fact that an inheritance tax is a special tax as to which this rule is applied generally.
The Galveston Court applied this rule in State v. Hogg, Tex.Civ.App., 54 S.W.2d 274. While the decision in that case was reversed by the Supreme Court (123 Tex. 568, 70 S.W.2d 699, 72 S.W.2d 593), the holding upon this rule of construction was not questioned.
The trend of decision and legislation has been to give a liberal construction...
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In re Bordeaux' Estate
...in which it was urged that the tie of affinity is broken upon the death, without issue, of the spouse whose marriage created it, Lewis v. O'Hair, supra, which involved similar facts, not having as yet been decided. The court was not impressed with the logic of the argument that, in its use ......
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