Under the above rules, if, as contended by Pugh, Mrs. Turner was in fact the owner of the two notes in her own right, not as an heir, but as a legatee under Scott's will, and was not holding them as executrix of Scott's estate, then the statute is not applicable, because at the time of the trial she, as executrix, was a mere nominal party in that capacity. If the estate has been fully administered, the executrix, as such, would be a mere nominal party, and no judgment could be rendered which would affect her in such capacity. Stiles v. Hawkins (Com. App.), 207 S.W. 89; Frame v. Whitaker, 120 Tex. 53, 36 S.W.2d 149; Kidd v. Young, 185 S.W.2d 173 (reversed on other grounds, 144 Tex. 322, 190 S.W.2d 65); Nesbitt v. First National Bank of San Angelo (Civ. App.), 108 S.W.2d 318; Caffey's Ex'rs v. Caffey (Civ. App.), 35 S.W. 738. 3 The Court of Civil Appeals on the former trial of this case, 187 S.W.2d 598, correctly decided that at the time of trial the estate was fully administered.
In the trial court the Youngs disclaimed, and judgment was entered non obstante veredicto for R.B. Mitchell and his wife. That judgment was affirmed by the Court of Civil Appeals, 185 S.W.2d 173. The Kidds have brought error to the Supreme Court.
Under facts that are very similar to those in this case, the supreme court held in Kidd that grantors who continued to use and possess land after it was transferred to grantees did not acquire title of that land by adverse possession because the possession and use "was not, within itself, inconsistent and hostile to the title conveyed by the deed." See id.; see also Kidd v. Young, 185 S.W.2d 173 (Tex. Civ. App.—Amarillo 1945), rev'd, id. (setting forth additional background facts not included in supreme court's opinion). Specifically, the supreme court held that the grantors' continued possession of the property after the transfer to grantees "must be regarded as subservient to the title held by their grantees."
Appellant's argument under her points one and two is premised upon the proposition that because the consideration for the conveyance to Callatana Castro of the property here involved is contractual, parol evidence is incompetent to establish a trust in favor of the appellee. For precedential support, appellant cites Kidd v. Young, Tex.Civ.App., 185 S.W.2d 173; Bradshaw v. McDonald, Tex.Civ.App., 211 S.W.2d 797; Loeb v. Wilhite, Tex.Civ.App., 224 S.W.2d 343; Knox v. Long, Tex.Civ.App., 251 S.W.2d 911; Id., Tex., 257 S.W.2d 289; Hillman v. Graves, Tex.Civ.App., 134 S.W.2d 436; Clayman v. Lindsay, Tex.Civ.App., 247 S.W.2d 300; and Enos v. Leediker, Tex.Civ.App., 214 S.W.2d 694. We have examined each of the cited authorities, and find them to be either not factually analogous to the present case, or to deal with legal propositions not here applicable.
The testimony of appellee and his wife, therefore, was not in contravention of the statute, and, in our opinion, it was properly admitted. Matthews v. McLen, Tex.Civ.App. 131 S.W.2d 24; Clark v. Scott, Tex.Civ.App. 212 S.W. 728; Stiles v. Hawkins, Tex.Com.App., 207 S.W. 89; Kidd v. Young, Tex.Civ.App. 185 S.W.2d 173; Frame v. Whitaker, 120 Tex. 53, 36 S.W.2d 149; Parks v. Knox, 61 Tex. Civ. App. 493, 130 S.W. 203; Patton v. Smith, Tex.Civ.App. 221 S.W. 1034; Smith v. Patton, Tex.Com.App., 241 S.W. 109. Appellants contend that the estate had not been closed and could not be closed until the final determination of this suit because, in making return of the inheritance tax to the Federal Government, the notes herein sued upon were given only a nominal value with the understanding that an amended return would be filed and the accurate value of the indebtedness returned for assessment when the suit was terminated and the value of the indebtedness was ascertained.