ON MOTION FOR REHEARING
PEDEN, Justice.Appellants again urge us to hold that the heirship deed, Exhibit Swan 20, was not admissible in evidence.
We have no quarrel with the holding in Smith v. Lynn, 152 S.W.2d 838 (Tex.Civ.App.1941, no writ) that the “inherently weak” testimony of a witness as to a certain link in the heirship chain of title to a tract of land which was a “mere conclusion wholly unsupported by facts,” was legally insufficient to establish the vesting of title to land in the persons named by the witness as the heirs.
We believe, however, that in our case the heirship deed was admissible, not to prove a necessary heirship link in a trespass to try title suit, but at least to show that in 1892 W. H. Plumley, Jennie C. Pet-tis, S. B. Pettis, A. M. Plumley and Lizzie Plumley associated themselves together in executing a deed in which they declared that they were all of the heirs of Richard Plumley deceased. We think the trial judge did not err in admitting the exhibit with the instruction he gave.
We overrule the motion for rehearing.
Since the filing of our majority and concurring opinions on June 6, 1974 the appellants have filed a “motion to consider the absence of indispensable parties.” They point out that the appellees’ pleadings and the judgment appealed from list a number of the appellees as, for example, the “Estate of George C. Plumley, Deceased.”
The appellees assert that some six of the persons whose estates are thus listed apparently died pendente lite before entry of the Probate Court’s order in September, 1972 and that all such decedents except *298William Lloyd New were described as deceased in the final judgment entered in the District Court.
The appellants point out that an estate of a deceased person is not a legal entity and cannot sue or be sued, citing Camellia Diced Cream Co. v. Chance, 339 S.W.2d 558 (Tex.Civ.App.1960, no writ), Neblett v. Butler, 162 S.W.2d 458 (Tex.Civ.App.1942, writ ref. w. o. m.) and other cases.
The appellants assert that the heirs, executors or administrators of such deceased parties, each of whom was on the appel-lees’ side of the suit as descendants of Richard and Alice Plumley, have not been joined as parties and are indispensable parties; that this lack of indispensable parties is fundamental error and requires reversal of the judgment and remand of the case.
The absence of these parties was not raised in the trial court. If they were indispensable parties to the suit in the district court, proceeding in their absence was fundamental error which we could and should notice on our own motion, but if they were not, their joinder cannot be essential to jurisdiction of a court to proceed to judgment. Petroleum Anchor Equipment, Inc. v. Tyra, 406 S.W.2d 891 (Tex.1966).
Rule 39, Texas Rules of Civil Procedure, was amended .effective January 1, 1971, following the model of Rule 19, Federal Rules of Civil Procedure. The amendment was in effect when this cause proceeded to trial de novo in the district court on October 30, 1973. The following statements from the recent holding of the Texas Supreme Court in Cooper v. Texas Gulf Industries, Inc., 17 Tex.Sup.Ct.Jour. 340 (1974), are particularly pertinent:
“Contrary to our emphasis under Rule 39 before it was amended, today’s concern is less that of the jurisdiction of a court to proceed and is more a question of whether the court ought to proceed with those who are present. Rippey v. Denver United States National Bank, 42 F.R.D. 316 (D.Colo.1967). The United States Supreme Court provides a helpful discussion of the objectives sought by its amended Rule 19 in Provident Tradesmens Bank & Trust v. Patterson, 390 U. S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968). One of the practical factors the court took into consideration in holding that an absent party was not jurisdic-tionally indispensable was the fact that the case had actually been tried as to those parties who were present and there was no objection at the trial level concerning the nonjoinder of a party. As expressed in Continental Insurance Co. of New York v. Cotten, 427 F.2d 48, 51 (9th Cir. 1970), ‘at the appellate stage there is reason not to throw away a judgment just because it did not theoretically settle the whole controversy.’
“The amended rule includes practical considerations within the rule itself, including the extent to which an absent party may be prejudiced, the extent to which protective provisions may be made in the judgment, and whether in equity and good conscience the action should proceed or be dismissed. The factors mentioned in the rule which a judge may consider are not exclusive. Provident Tradesmens Bank & Trust Company v. Patterson, supra; Bixby v. Bixby, 50 F.R.D. 277 (S.D.Ill.1970); 7 C. Wright & A. Miller, Federal Practice and Procedure, supra, at 14. As expressed in Schutten v. Shell Oil Co., 421 F.2d 869, 874 (5th Cir. 1970), ‘[t]he watchwords of Rule 19 are “pragmatism” and “practicality.” The court must, however, always consider the possibility of shaping a decree in order to adjudicate between the parties who have been joined.’
“Under the provisions of our present Rule 39 it would he rare indeed if there were a person whose presence was so indispensable in the sense that his absence deprives the court of jurisdiction to adjudicate between the parties already joined. Although not of controlling importance, the very title of the rule has *299been changed from ‘Necessary Joinder of Parties’ to ‘Joinder of Parties Needed for Just Adjudication.’ Subdivision (a) provides that certain persons ‘shall be joined,’ but there is no arbitrary standard or precise formula for determining whether a particular person falls within its provisions. It is clear, moreover, that the persons described in the subdivision are to be joined only if subject to service of process.' When such a person cannot be made a party, the court is required to determine ‘whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed.’ ”
We do not know whether the heirs, executors or administrators of the deceased parties in our suit are subject to process. We hold that they were not indispensable parties, so the trial court did not commit fundamental .error by proceeding without their having been made parties in this proceeding in rem.
We overrule the appellants’ “motion to consider the absence of indispensable parties.”