Turner v. Pugh

• Decision Date: 16 April 1945
• Docket Number: No. 5672.,5672.
• Parties: TURNER v. PUGH.
• Court: Texas Court of Appeals

Page 598

187 S.W.2d 598

TURNER v. PUGH.

No. 5672.

Court of Civil Appeals of Texas. Amarillo.

April 16, 1945.

Rehearing Denied May 14, 1945.

Appeal from District Court, Ochiltree County; W. R. Ewing, Judge.

Action by Mary Virginia Scott Turner, in her own behalf and as independent executrix of the will of J. H. Scott, deceased, against T. O. Pugh on two notes payable to deceased. Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

Boyer & McConnell, of Perryton, for appellant.

R. T. Correll, of Perryton, and Hoover, Hoover & Cussen, of Canadian, for appellee.

STOKES, Justice.

This suit was instituted July 23, 1943, by the appellant, who at that time was Mary Virginia Scott, in her own behalf and as independent executrix of the last will and testament of J. H. Scott, her deceased husband, against the appellee, T. O. Pugh, upon two promissory notes executed by him to J. H. Scott. On November 8, 1944, in response to a motion in which appellant alleged that since the institution of the suit she had intermarried with M. J. Turner, an order was entered by the court permitting him to enter the case pro forma and the plaintiff was thereafter designated as Mary Virginia Scott Turner. The notes sued upon were dated July 27, 1938, one being in the sum of $4800. and the other in the sum of $4032., due and payable on or before July 27, 1939, and July 27, 1940, respectively.

Appellee filed his answer, in which he alleged the notes had been discharged on June 25, 1941, by an agreement between him and the payee, J. H. Scott, and that he paid to Scott the sum of $700, which was accepted by Scott in full settlement and satisfaction of the entire indebtedness.

The case was submitted to a jury upon one special issue, in response to which the jury found that during the month of April 1941 J. H. Scott agreed to accept in full settlement and satisfaction of the notes sued upon whatever proceeds might be derived from the sale of certain farm machinery and growing wheat, upon which he held a mortgage to secure the payment of the notes. The testimony showed that the appellee sold the farm machinery at an auction sale and it netted $700, which he paid to J. H. Scott on June 25, 1941, and that the wheat crop was a total failure. Judgment was entered in favor of the appellee and appellants duly excepted, perfected their appeal, and present the case here upon fifteen assignments or points of error which, in various ways, present three contentions. They contend that the court erred, first, in permitting the appellee and his wife, over objections of appellants, to detail conversations between them and J. H. Scott in April and June 1941, because the admission of such testimony was in violation of the provisions of Article 3716, R. C. S., commonly known as the "death statute"; secondly, in overruling their motion for a peremptory instruction, because there was no consideration revealed by the testimony which would support an accord and satisfaction; and, thirdly, in refusing to submit to the jury their specially requested issue No. 2 which would have required the jury to determine the question of whether or not J. H. Scott accepted the $700 in full payment and satisfaction of the two notes sued upon.

The record reveals that J. H. Scott died January 6, 1943, and left a last will and testament, in which he made money bequests of $10,000 each to a sister and a brother and bequeathed all of the residue of his estate to his wife, the appellant, Mary Virginia Scott, and appointed her independent executrix. The will was filed in the probate court of Dallas County January 8, 1943, and admitted to probate at the following term. It was further shown, without dispute, that the legacies provided in the will and all of the debts due by the estate had been paid at the time of the trial and, as far as is shown by the record, all claims due the estate had been collected except the two notes herein sued upon. Appellee and his wife testified that in April 1941 they went to Dallas to consult J. H. Scott about borrowing some more money from him. They said he informed them he was not active any more and would not loan them any more money but that he would like to get the old debt cleared up. They said he told them that if Mr. Pugh would go back to Ochiltree County, sell the farm machinery and the wheat, upon all of which he had a mortgage, and deliver the proceeds of such sales to him, he would give them a complete release of all of the indebtedness. They further testified that at that time they informed Scott that the prospects for the wheat were favorable and that they returned to their home in Ochiltree County and inaugurated an auction sale of the farm machinery, which netted $700. They testified further that after their visit to Scott at Dallas in April the condition of the wheat declined and when they returned to Dallas on June 25, 1941, and paid the $700 to J. H. Scott they informed him the wheat "didn't look very good." They said that Scott remarked that it did not make any difference, he wanted to get the indebtedness cleared up anyway, and told his wife, the appellant, Mary Virginia Scott, to get the papers; that she started to another room, apparently to comply with the request, but when she got to the door she stopped and remarked that the notes were not there but were at Stamford where Scott and his brother owned a business. They said that Scott and his wife promised them they would mail the notes to Pugh at Perryton and that Pugh agreed they might do so. This testimony was objected to by the appellants upon the ground that Mary Virginia Scott Turner was independent executrix of the will of her former husband and had instituted the suit as independent executrix as well as in her personal behalf, and that the testimony was in violation of the provisions of Article 3716, R.C.S., which provides that in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against others as to any transaction with, or statement by, the testator, intestate, or ward unless called to testify thereto by the opposite party. The action of the court in overruling their objections to this testimony constitutes appellants' first complaint.

The provisions of Article 3716 apply only to cases in which the executor, administrator, guardian, heir, or legal representative is a necessary party to the suit and in which judgment may be rendered for or against him as such. When the will of J. H. Scott was admitted to probate and appellant, Mary Virginia Scott Turner, qualified as independent executrix, and when this suit was instituted, the estate owed a number of debts, but while the suit was pending and before the trial all of the debts of the estate had been paid and the special legacies had been distributed as provided by the will. Nothing remained, therefore, to be administered by the executrix and as such executrix she became a mere nominal party to the suit and was such at the time of the trial. 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. They say that Mrs. Turner therefore still had duties to perform as executrix of the estate and that she was therefore a necessary party as such executrix. We cannot accede to this contention. The inventory and appraisement showed the estate was possessed of more than $175,000 worth of property after all of the indebtedness and the expenses were paid, more than $50,000 of it being in money. No creditor of the estate had...