STATE ex rel. WALTON, Tax Collector, v. YTURRIA et al., 204 S.W. 315

GREENWOOD, J. This case presents two questions, viz.: First. Was property within this state subject to an inheritance tax, under-

article 7487, R. S., upon passing by will to persons adopted by the testator? Second. Was property within this state subject to said tax, under said article, upon passing by will to children of persons adopted by the testator? The facts show that Francisco Yturria died, without issue of, his body, on June 15, 1912, having his domicile in Cameron county, Tex., and leaving a will, duly probated in said county, whereby he devised all of his property as follows: To his surviving' wife Felicitas Trevino de Yturria, an estate for her life in one undivided half of same.

To Daniel Yturria, who was duly adopted under the laws of Texas, on January 8, 1897, by Francisco Yturria and Felicitas Trevino de Yturria, his wife, an estate for the term of the life of Daniel Yturria in an undivided one-fourth of same. To Ysabel Garcia, who was duly adopted under the laws of Texas, on' January 8, 1897, by Francisco Yturria and Felicitas Trevino de Yturria, his wife, an estate for the term of the life of Ysabel Garcia in an undivided one-fourth of same. To I-Iermino Yturria and Fausto Yturria, children of said Daniel Yturria, the remainder of the property devised for his life to Daniel Yturria.

To Miguel Francisco Garcia, Juan Antonio Garcia, Jose. Alejandro Garcia, and Maria del Rosario Garcia, children of said Ysabel Garcia, the remainder of the property devised for her life to Ysabel Garcia. To the above-named children of Daniel Yturria and Ysabel Garcia the remainder of the -property devised for her life to Felici-tas Trevino de Yturria.

It was also shown that if the property devised to the children of the persons adopted by Francisco Yturria was subject to the inheritance tax, then $4,003.11,. with 6 percent. per annum interest from June 15, 1912, would be the amount of the tax on the property in Texas devised to each of the defendants in error Hermino Yturria and Fausto Yturria, and $2,450.85, with 6 per cent, per annum interest from June 15, 1912, would be the amount of the tax on the property in Texas devised to each, of the defendants in error Miguel Francisco' Garcia, Juan Antonio Garcia, Jose Alejandro Garcia, and Maria del Rosario Garcia.

In so far as it applies to the questions presented by this record,

article 7487, R. S., subjects to a tax all property within the jurisdiction of the state upon its passing by will or by descent to or for the use of any person, “except the father, mother, wife or direct lineal descendants of the testator.” The contention for defendants in error is that our adoption statute gives to adopted persons and their legitimate children the status of natural children and grandchildren of the adopter, and that hence adopted persons and the legitimate children of adopted persons come within the meaning of the term “direct lineal descendants” as used in

article 7487, R. S. As has often been stated adoption was unknown to the common law, but was recognized from the earliest days in the jurisprudence of the civil law. Under the civil law adoption created the relationship of parent and child, with the resultant rights and duties. Had our statute declared the effect of adoption to be what it was under the civil law, or had it been silent with respect to such effect, after merely providing for adoption, the conclusion would seem correct that adopted persons and their children should be given the same legal status as natural children and grandchildren.

Our statute, however, defines with precision the rights and privileges’ to which a party shall be entitled by virtue of adoption. These rights and privileges are, under

article 2, R. S.: “All the rights and privileges, both in law and equity of a legal heir of the party so adopting him: Provided, however, that if the party adopting such heir have at the time of such adoption, or shall thereafter have, a child begotten, in lawful wedlock, such adopted heir shall in no case inherit more than one-fourth of the estate of the party adopting him.” The opinion of Chief Justice Willie in Eck-ford v. Knox, 67 Tex. 202, 203, 2 S. W. 372, leaves little basis for controversy as to what are “all the rights and privileges, both in law and equity of a legal heir” of the adopter.

In that opinion it is declared: “When the statute says that one person may adopt another as his heir, and that the latter thereupon becomes entitled to all the rights and privileges of a legal heir of the party so adopting him, it means that, upon the death of the adopting party, the other shall, if living, become entitled to an interest in all his property of which he shall die intestate, and shall not be wholly excluded by any class of persons whatsoever. ⅜ ⅜ * Aware that the effect of the law was to give him a child’s share of the property, the Legislature confined his inheritance under certain circumstances to one-fourth of the estate, thereby saying that in all other respects he should be entitled to all the rights and priviJ leges of a child so far as the inheritance is concerned.” 67 Tex. 202, 204, 2 S.

W. 372. The quoted language plainly rejects the civil law rule “that the person adopted stood not only himself in relation of child to him adopting, but his Children become grandchildren of such person,” as announced in the leading case of Vidal v. Commagere, 13 La.

Ann. 516, and interprets our statute as substituting therefor the rule that the adopted person shall acquire only rights and privileges in the inheritance, that is, in that which passes from the adopter upon his death, and, as to such inheritance,, the rights and privileges of the adopted person are made the same as would be those of a natural child, save as restricted by the closing proviso of

article 2. That the statute thus wrought an important modification of the civil law is expressly pointed out by Chief Justice Willie. 67 Tex. 204, 2 S. W. 372. It is clear to our minds that, had the legislative intent been otherwise than as interpreted in Eckford v. Knox, we would not find in our adoption statute such deliberate avoidance of the word “child” nor such discrimi.nating use of the term “legal heir.” On the authority of Eckford v. Knox, it was determined in Taylor v. Deseve, 81 Te.x. 249, 16 S.

W. 1008, that adoption in Texas did not have the same effect as paternity and filiation, and did not make the adopted person a constituent of the family of the adopter. The case of Cochran v. Cochran, 43 Tex. Civ. App. 259, 95 S.

W. 732, presented the question as to whether a person died without “lawful children,” within the meaning of a will, when he died leaving one whom he had adopted surviving him, but leaving no natural children, and it was held that the party adopted was not a lawful child, the court saying that “an adopted heir is not in fact the child of the person adopting him.” Adhering to the decisions cited, we conclude that in this state neither an adopted person nor a child of an adopted person is a “direct lineal descendant” of the adopter. No other conclusion could be reached without disapproving Eckford v.

Knox and without disregard of the established rule requiring us to give to words in common use, when found in a statute, the sense in which they are ordinarily used. T. & P. Ry. Co. v. Railroad Commission of Texas, 105 Tex. 393, 150 S. W. 878.

Given ordinary significance, as shown by Webster’s Dictionary, “direct” means “in the line of descent,” “lineal” means “in the line of succession through lineage,” and “descendant” means “one who descends as offspring, however remotely”; and hence, as each of these three nearly synonymous words carries the concept of offspring in the line of generation, their combined use precludes our declaring others than natural offspring to be within the class of direct lineal descendants.

Section 2 of

article 2462, R. S., formerly-

article 1689, was held to govern the distribution of the estate of one who died leaving surviving him both a widow and also one whom he had adopted,

section 2 reading: “If the deceased have no child or children, or their descendants, then the surviving husband or wife shall be entitled to all the personal estate, and to one-half of the lands of the intestate, without remainder to any person, and the other half shall pass and be inherited according to the rules of descent and distribution.” White v. Holman, 25 Tex. Civ. App. 152, 60 S. W. 438. Although the adopted person whose rights were discussed in that case would seem to have been really entitled to the half of the land awarded her, not under

section 2 of former

article 1689, but under a correct construction of

article 2469, then

article 1696 and the adoption statute, as announced in Eckford v. Knox, because the land in controversy belonged to the community estate of the adopter and his widow, nevertheless the opinion in White v. Holman shows that the court interpreted the words “child,” “children,” and “their descendants” as not including an adopted heir. That

interpretation of these words, as used throughout our statutes of descent, is believed to be sound. Having set out our reasons for this conclusion in an opinion filed to-day reversing the contrary holding of the Court of Civil Appeals in the case of Harle v. Harle, 166 S. W. 674, it is not necessary to repeat them. When an adopted person acquires property by descent from his adopter, it is not because he is a child of the adopter, but it is because the adoption statute puts him in the position of a child with respect to the inheritance.

While neither those adopted by Daniel Tturria nor their children were his direct lineal descendants, yet, as already pointed out, those adopted by him became entitled to the same rights and privileges as children with respect to that which passed to them upon his death without issue of his body. The exemption of property passing to certain specified classes from the payment of an inheritance tax and from the lien securing same, under our statutes, clearly confers on such classes a privilege.

For “the term ‘privilege’ includes in its ordinary definition an exemption from such burthens as others are subjected to, as the privilege of being exempt from arrest or from taxation.” State v. Betts, 24 N. J. Law, 557. The Supreme Court of Pennsylvania decided in the case of Commonwealth v. Henderson, 172 Pa. 135, 33 Atl. 368, that the title to

an act entitled

an act to confer upon a party the privileges of a son gave notice of the purpose to confer on the party exemption from payment of any further inheritance tax than would be payable by a natural son, for the reason that “the grant of all the privileges of a son necessarily included this privilege of exemption.” As it was the privilege of a child of Daniel Tturria under

article 7487, to have property within the jurisdiction of this state pass to him, by will or descent, without payment of an inheritance tax, and as the persons adopted by Daniel Tturria were entitled, by the plain terms of

article 2 to the same privilege, it follows that Daniel Tturria and Tsabel Garcia were privileged to take the property devised to them by their adopter, without payment of the inheritance tax, and the judgment of the trial court and of the Court of Civil Appeals were correct with regard to the devises to them.. But we do' not feel warranted in extending to others the rights and privileges, which are confined by the adoption statute to the adopted persons, and therefore conclude that the property devised to the children of the persons adopted by Francisco Tturria was subject to-the payment of the inheritance tax.

The judgments of the Court of Civil Appeals and the district court are accordingly reversed.

It is ordered that judgment be entered denying plaintiff in error, the state of Texas, any recovery as to the taxes sued for on the property devised to Daniel Tturria and Tsabel Garcia, adopted children of the testator, Francisco Tturria, and that judgment be entered in favor of the plaintiff in error, the state of Texas, against the executor and the respective devisees for the amounts of inheritance taxes and interest shown above on the property in Texas devised by the will of Francisco Tturria to the children hereinbefore named of Daniel Ttur-ria and Tsabel Garcia, with foreclosure of the lien securing said amounts. &wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes