The opinion
i
C.
.:.~ . . . .
Honorable Roy &using
County Attorney
Lipsocmb County
Higgins, Texas~
_~:;,..,yi-. .~. .,:
Dear Sirs Opinion.Ro* O-676. ~ : , '. ..
Rex A suit for taxes, aooruihg
both prior to and after ths :
death of deoedent, may be
malntsinedagainet an estate
without first presenting a
olaim to the administrator
or exeoutor.. : '. ::' :'
.,.~.
This Is in.answor to your inquiry in whioh,you ask ~the
following questionsr
"1. Does the distriot oourt have original juria-
diction to try delinquent tax suit and~foreolose tax l$en
on land against an estate for delinquent taxes that hares -
aoorued prior to the death of the deoeased. where no
olaim had been presented tothe administratrix-for approml
or rejeotion?
"2. Does the distriot oourt have original jurirdiotion
to try delinquent tax suit and foreolose tax lien on lend
against an estate for delinquent taxes thathave accrued sub-
sequent to the death of the deceased, where no claim had been
presented to the administratrix for approvalor rejection?
"3. Does the distriot oourt have original jurir-
diction to try delinquent tax suit and foreolose lien upon
land for delinquent taxes against an estate that has an
acting admiaistratrix, without first presenting a claim
for the taxes~to the administratrix for approval or rejea-
tien, where it is 8hom that paic of the taxes involving
the suit aoorued prior to the death of the deoeased and
part subsequent to the death of the deceased?
"4. Does the distriot court have original juris-
diotion to try delinquent tax suit for foreclosure of tax
lien on land againat an estate, with a qualified and acting
administratrix, without first presenting a claim for ap-
proval or rejection, where it is shone that six mortgagees*
interests were involved?"
.% -
.
Xoon.Roy Sansing, page 2 O-678
As w understand the facts in the oars you ask about, an administra-
tion is pending in the ease of an estate in which there are taxes
due on land belonging to the estate that accrued both prior to and
after the death of the decedent.
At the outset we are confronted with the general rule that
before a suit can be filed against an executor or administrator for
a claim for money owed by the deoedent that said claim must first be
presented to the exeoutor.or administrator and they fail or refuse to
pay the same. &kin6 v. Cain, 72 Tex. 88, 10 9. K. 393; Tolivar v.
Lombardo, (Ct. Civ. App.) 88 S. 9. 733; end 14 Tex. Jur. 28, 107, 112.
The same general rule applies to claims for money that are scoured
by mortgages or other liens. Buohanan v. 'Alagnon,62 Tax. 376; R. L.
Whth:,o. v. Stout,~(Ct. Civ. App.) 102 S. W. (2d) 1065 (error dis-
. These rules are by virtue of Articles 3609, 3522, 3526,
3530, Revised Civil Statutes of Texas, which read as followsr
k-t. 3509. All olaims for money against a testator
or intestate shall bs presented to the exsoutor or ad-
ministrator uithin one year after the original grant of
letters testamentary or,of administration, otherwise the
payment thereof shall be postponed until the claims mhioh
have been presented within 'oneyear and allowed by the
exeoutor or administrator and approved.by the county judge
have been first entirely paid.
"Art. 3622. When a'olaim for money against an estate
has been rejected by the exeoutor or administrator, either
in whole or in part, the owner of suoh olaim may, within
ninety days after suoh rejection, aMnot thereafter, brings
suit against the executor or administrator for the establish-
ment thereof in any oourt having jurisdiction of the same.
."Art: 3628. The provisions of this ohapter respeating
the presentation of olaims shall not be so .construedes to
apply to the olaim of any heir, devisee or legates when olaim-
ing as such, nor to any claim that aooruss against the estate
after the granting of letters testamentary or of administration
for which the exeoutor or administrator has contracted .
'Wt. 3630. No judgment shall be rendered in favor
of a olaimant upon any-01eSp for money which has not been
legally presented to the executor or administrator, and
rejeoted by him, either in mboie or in part."
Ry virtue of Artiole 3628 those taxes that did not beoome
due until after the administrator was appointed would not have to bs
presentedto the administrator before suit could be maintained. See
Adrianoe v. Crews, 45 Tex. 181, and Atrip v.,Rinkle, (Ct. Civ. App.)
268 S. W. 860.
..
Hon. Roy Sansing, page 3 O-676
As to the taxes that became due prior to the appointient
of the administrator your questions are more diffioult. I% must
decide whether or not a claim for texes is an exception to the
general rule stated above. We are unable to find any Texas appellate
court oases on the question.
The statutes quoted above are not statutes of limitations
{Gaston v. Boyd, 62 Tex. 282; Whitmire v. Powell, (Tex. Civ. App.)
117 S. W. 433)~ but Article 3509 puts certain time restrictions on
everyone who has a claim for money against the estate. We think the
same reasons that,are given~for a statute of limitations not running
against the Stats'~hlsoapply in this ease; The state~should not be
bound bythese~statutbs any more than it is bound by a statute of
limitations. Under the disoussion of "limitation of aotions" in 17
Ruling ,Casehaw 967,.~97C,'wefind the following;
"It is a maxim .of great antiquity in .the English
law that no time runs against the crown, or, as it is
expressed in the,early writers, nullum tempusoaourrit,
regi. The reason 8metimeS assigned why no'laohes,shall
be imputed to the king~is,that he,is oontinually busied
for the publio good, and has no leisure to assert his rights
within the period~limited to his subject. But a better
reason is the ,greatpublia polioyof preserving public
rights and property from damage and loss through the
negligence of~publio officers. . .
,. * * ,*
'-"The general principles as to the immunity of the
sovereign frcmlaohss and statutes of limitation which
arose in E&land have been applied in reference to the
statutes of the Amerioan union. Statutes of limitations
do not apply to a state when suing in its sovereign
oapacity, unless the statute provides to the oontrary,
or unless the state,18 neoessarily included by the,nature
of the misohiefs to be,rsmedied. . . ."
This rule, and all of its reasons, has been adopted by the Texas
courts. drown v. Sneed, 77 Tex. 471, 14 S. W. 246; and l?aters-
Pierce Oil Co. v. State,~4STex. Civ. App. 162; 106 S. W. 918.'
It is a fundamental rule of law. aside from the provisions
in the Constitution, that all property should,bs ~taxeduniformly, and
everyone should bear their tax burdens equalIy"with everyone else.
Mullins v. Colfax Consolidated'School Mstrict; 16 S. VT. 2nd~940. He
do not believe it was intended by the law-makers that the State should -
bs subjeoted to certain procedural diffioulties in oolleating taxes
in those oases where the tax debtor dies, end thereby run the risk
of the debtor's property esoaping its just share of taxes in those
cases, when it does not have to follow any suoh prooedure in the ease
of living persons who ows i&es.
.
;, ~._ ._~._.. ., ,. :
Hon. Roy Sansing. pege 4 O-678
One of the purposes of these statutes (Art. 35OQ),etc.)
is to give the administrator or executor of the estate an oppor-
tunity to asoertain what debts are owned by the estate before he
closes the administration. Garrettv. Gaines, 6 Tex. 435. It.is
not necessary that a claim for taxes be presented in order for him
to know the t%mouutof the taxes due because he hss constructive
notice as a matter of law of the taxes owed to the State, It is a
matter of publio record at the court house.
Although me are not aided by acy Texas appellate court
cases on this question, we find that in twelve other states that
have laws on preeentat,ionof claims to administrators and exeoutore
similar to the Texas.St+tutes there are appellate court decisions on
this question. 'Cur unoertainty on the.law.on this question $I not.,
removed by these out-of-state oases because eight of those,states :
follow one holding and four fol%w the opposite holding. Eight hold
that a alaim for taxes does not need to,.bepresented tothe adminis-
trator or exeoutor, 88:Pollcwsr California (People V~..Olvera,.43
Cal. 492), Indiana :(GrahamV. Russell,,152 Ind.,l86,~52 N. &806;:
Cullop V. Ci%Vinoennes, 34 :Ind.App.,687,~72~N. R . 1663 and .-
Barnum V. Rall$ha& 63 Ind.,App..349, 112 N. E. 561)~ Iowa (Piadley.
T. Taylor~,97.Iona 420, 66 N.,?~.744)j,Maryland (Bonapexr. State,
63 Md. 465); Missouri (State V. Tittmen, llQ~,No.661;24 S* W. 1032)~
Ohio (Gager V. Pront, 48~Oh. St. 89. 26 N. E.,l013); Utah (Clayton V.
Goody, 33 Utah.251~.93 Paa..723)a and Wisconsin (,&TV. Laughlin,
149 Ms. 271, 136 N. W. 606, 40 L. R. At:(N7S.)2?'1 and In re Adams'
Estate, 272 N; 8. 19)3 and four hold that B olaim for taxes must be
presented to the administrator or exeoutor:before suit for the same
can be filed against the estate, those st+tes being Connecticut
(.SherwoodV. City of Bridgeport, 123 Corm. 348. 195 Atl. 744);
Illinois (Stone r. Board of Review, 345 Ill. 286, 188 N. E. 430)3 .
Nebraska (IdilletV. Early, 16 Reb. 266, 20 N. II. 352); and Pennsyl-
mn re Thompson's Estate, 130 Pa. 8upra. 263, 197 Atl. 5470
We think the majority holding is the better rule. It was
expressed by the Supreme Court of Indiana in the ease of Graham V.
Russell, supra, as follows:
"The contention of appellant's aouusel that the
petition ought to have alleged that the taxes in dispute
had been filed as a claim against Graham's estate prior.
to its final settlement is,withoutmerit. The facts dis-
close thatthedecsdent had for.ms.nyyears prior to.his
death failed to list and ~r&turofor taxation.a large amount
of his property, and at his death it is charged he was
liable to the payment of taxes, on,acoowt of his yid~
default,,in the sum of $3,000 and oyx, which had acarued
and were due for state, county, and tomnship purposes.
Taxes ere not suoh olaims rhiah the law of this state
either requires-or intends shall be filed-for payment a-
gain& a decedent's estate. It is true that taxes, in
iion.Roy Sensing, page 6 O-678
the order prescriSed by the statute for the payment of
liabiiities of a decedent's estate, come within the
fourth provision of such order of payment. Rev. Qt.
1881, 2 2378 (Bornsq Rev. St. 1894, 8 2534). The duty,
however, rests upon the administrator or executor to pay
the taxes due against the estate without their being
filed or presented for payment. . . . . He, whii~nin
life, owed, as one of the highest duties to the goverc-
msnt, the duty to pay all taxes imposed upon hjs property
linb!e to taxation. As s oompensation for the discharge
of their duty, the state afforded him protection to
his life, liberty, and the due enjoyment of the property
with whioh he had been blessed3 and',thedischarge of
his duty, if the dseedent is'shom to have omitted it,
must rest upon his estate. %th or without knowledge
of the existence of this liability of her decedent, it
existed, all the seme, agsinst the property of his
estate until paid, unless barred by some provision of
law. . . A tax olaimor ohaige; a,8we have eeen, is not
required to be filed again&an estate, but it must bs
taken notioe of by an administrator or exeoutcr, and
paid without being-filed; and, if he proceeds to finally
settle the estate without the payment of such tax oleim,
settled or determined by proper'edjudihation in oourt,
he does so et the peril of heving.suoh final:settlenent
set aside, under the statute&i question, at the instance
of some one entitled to institute an 'aotionfor that purpose."
The Supreme Court of Wisconsin took e similsr view in the
cese of In re Adams' Bstate, supra,,in which it said:
"At the outset it shculd~be noted that in respect
to claims for taxes generally, lithe more general view
is that the requirement of presentation does not apply
to claims for taxes and assessments, whether assessed
before or after the death of decedent.* 24 1% J. 325 2
946. In holding that it was not neoessary to present
e claim for e tax levied on prcperty,.omitted from the
tax roll in former years, in the county ocurt es e aleim
against the estate of 8.decedent, this court in Rogue V.
Laughlio, 149 1Ais.271, 136 N. W. 606, 610, 40 L. R. A.
(9. 8.) 927, Ann. Cs. 1913C, 1367; quoted the following:
'Taxes are not such claims which the law of this state
either requires or intends shell be filed for payment
against e decedent's estate. It is true that taxes, in
the order prescribed by the statute for the payment of
liabilities of a deoedent'k estate, acme within the fourth
provision of such order of payment. . . . The duty, however,
rests upon the administrator or exeoutor to pey the taxes
due against the estate, without their being filed or presentod
for payment.'"
.
-. . ”
Hon. Roy Sawing, page 6 O-678
It is our opinion that the distriat court has original
jurisdiction to try a delinquent tax suit and foreclose a tax lien
on land for taxes, acaruing both prior to and subsequent to the
death of the decedent, tithout first presenting e claim for said taxes
to the administrator or executor of the estate; and therefore, our
as‘swer to each of your four questions is "yes."
Yours very truly
OF TEXAS
+TTI)RN%YG:,NE:RAL
Ry s/Caoil C. Rotsoh
C.¶cilC. Rotsoh
Assistant
CCR:N:wo
APPROVED JULY 28, 1939
s/N. F. Moore
FIRST ASSISTANT
ATTORNEY GENRRAL
Approved Opinion Committee By TDR Chairman
. .