Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-18-00900-CV

IN THE ESTATE OF Marjorie A. CHILDS, Deceased

From the Probate Court No. 2, Bexar County, Texas

Trial Court No. 2014PC0056

Honorable Tom Rickhoff, Judge Presiding

Opinion by: Patricia O. Alvarez, Justice

Sitting: Patricia O. Alvarez, Justice

Irene Rios, Justice

Beth Watkins, Justice

Delivered and Filed: April 22, 2020

AFFIRMED

Mollie Allen Childs appeals a judgment declaring an agreement between Mollie and her 

two sisters regarding the ownership of two brokerage accounts to be valid and enforceable based 

on a jury’s findings. The jury found the agreement was supported by consideration and Mollie’s 

failure to comply with the agreement was not excused by a mutual mistake. On appeal, Mollie 

challenges the legal and factual sufficiency of the evidence to support the jury’s findings. Mollie 

also challenges the award of attorney’s fees. We affirm the probate court’s judgment.

BACKGROUND

This is the second appeal to this court from the underlying probate case. In the first appeal, 

this court reversed a summary judgment in Mollie’s favor holding “Mollie did not conclusively 

establish either the lack of consideration or a mutual mistake of material fact.” In re Estate of 
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Childs, No. 04-15-00623-CV, 2016 WL 3452624, at *4 (Tex. App.—San Antonio June 22, 2016, 

no pet.) (mem. op.) (Childs I). We then remanded the cause for further proceedings. Id.

Mollie, Susan Addison, and Pamela McCaskill are the three daughters of Marjorie Allen 

Childs. Marjorie was the only daughter of Bertha Allen. 

Bertha’s friend, Alma Fehr, bequeathed Bertha some shares of stock in Fehr Baking 

Company. By the time Bertha executed her will in 1980, the shares of stock in Fehr Baking 

Company had been converted into shares of stock in Campbell Taggart Associated Bakeries, Inc. 

Bertha’s will devised those shares of stock under the following provision of her will:

II.

I give all shares of stock owned by me in Campbell Taggart Associated 

Bakeries, Inc. at the time of my death to my daughter, Marjorie Allen Childs, with 

the request that she use only the income in cash dividends from said shares during 

her lifetime and that on her death she make provision for said shares to be divided

equally among her daughters, or the issue of any deceased daughter. Should it 

become wise at any time to sell these shares, it is my desire that the proceeds, or 

any reinvestment of the proceeds, be held and disposed of by my daughter at her 

death in the same manner.

Bertha passed away in 1981. At some point, Campbell Taggart was acquired by Anheuser Busch

Companies, and the Campbell Taggart shares then held by Marjorie were converted into shares of 

stock in Anheuser Busch. 

In 1992 or 1993, Marjorie placed some of the Anheuser Busch shares into a joint brokerage 

account which she and Mollie could use as leverage to borrow and invest in other stock. Mollie 

testified the purpose of opening the brokerage account was to diversify Marjorie’s assets. While 

the shares were held in the brokerage account, Marjorie continued to receive the income from the 

dividends paid on the shares while Mollie received all other income generated by the brokerage 

account. At some point, the brokerage account was closed. Some of the shares transferred to the 

brokerage account were sold to pay the brokerage account debt that was owed, and the remaining 
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shares were placed into an account held by a revocable trust. Marjorie and Mollie were the cotrustees of the trust, and Mollie, Pamela, and Susan were the beneficiaries.

On November 20, 2008, Marjorie executed a will containing the following provision 

regarding the shares of stock she was bequeathed by Bertha:

Pursuant to the requirements of the life estate created for my benefit under 

Section II of the Will of Bertha Allen, the Anheuser Busch stock, which is derived 

from the Campbell Taggart Associated, Inc., stock addressed in the aforementioned 

Section II of Bertha Allen’s Will, shall be distributed to my daughters and their 

descendants, per stirpes. Furthermore, and also pursuant to the requirement of the 

life estate created for my benefit under Section II of Bertha Allen’s Will, if at the 

time of my death I no longer own the Anheuser Busch stock, then the proceeds or 

reinvestment of the proceeds shall be distributed to my daughters and their 

descendants, per stirpes.

In late 2008, Anheuser Busch was acquired by another company, and the Anheuser Busch 

shares held by Marjorie were redeemed by the acquiring company for approximately $5.8 million. 

The Anheuser Bush shares then held by the trust were apparently redeemed in a separate 

transaction than the shares that were never transferred to the brokerage account. The money paid 

for the shares held by the trust, approximately $1 million, was used to open a transfer on death 

brokerage account with Raymond James & Associates, Inc. The money paid for the other shares, 

approximately $4.8 million, was used to open a transfer on death brokerage account with RBC 

Correspondent Services which the parties generally refer to as the Federated Securities account.1

Mollie testified she prepared the account applications for both accounts which Marjorie 

then signed. The Raymond James account listed Mollie as the only beneficiary. The Federated 

Securities account listed Mollie, Pamela, and Susan as beneficiaries. Although Pamela and Susan 

received statements for the Federated Securities account and were able to request trades in that 

account, they did not receive any information regarding the Raymond James account.

1 The account application refers to RBC Correspondent Services while the account statements refer to Federated 

Securities.
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After the Anheuser Busch stock redemption, Pamela, Susan, and Mollie began exchanging 

e-mails regarding the transfer on death accounts and the terms of Bertha’s and Marjorie’s wills. 

Pamela, Susan, and Mollie all initially believed Bertha’s will gave Marjorie a life estate in the 

shares of stock she received under Bertha’s will with Pamela, Susan, and Mollie as equal 

remaindermen. In the e-mails, Pamela and Mollie discussed whether the transfer on death accounts 

altered that disposition in the wills. Although Susan was not as involved in the discussion, she 

was copied on several e-mails, and sent at least one e-mail asking about the Raymond James 

account. As a result of their discussions, Pamela, Mollie, and Susan entered into an agreement in 

2012 which provided, in pertinent part as follows:

Agreement Regarding Remainder Interests

Of Bertha Allen Life Estate

Pamela Ann Childs McCaskill (Pam), Susan Kaye Childs Addison (Susan), and 

Mollie Allen Childs (Mollie) are the three daughters and only children of Marjorie 

A. Childs. For value received and hereby acknowledged Pam, Susan and Mollie 

hereby agree as follows:

The entire assets subject to the life estate created by the will of Bertha Allen 

and referenced in the will of Marjorie A. Childs signed November 20, 2008, are 

contained within 2 brokerage accounts styled “Mollie Childs POA U/W Bertha 

Allen DTD 12/5/2008 FBO Marjorie Childs Life Tenant”. One brokerage account 

is held under account [number] at Federated Securities, the other under account 

[number] at Raymond James & Associates. In the event Pamela, Susan and Mollie 

are living at the time of death of Marjorie A. Childs, the accounts are to be divided 

and distributed as follows:

The Federated Securities account to be split equally and distributed between 

Pam and Susan; the Raymond James account to be distributed in its entirety to 

Mollie.

In the event one or two of the distributees predeceases Marjorie A. Childs, that 

portion of the assets subject to the life estate that would have been distributed to 

the heir/heirs shall be distributed in equal parts to the surviving heir/heirs named 

under the wills of Bertha Allen and Marjorie A. Childs.

Marjorie died on December 17, 2013. After Marjorie’s will was admitted to probate, 

Mollie filed a lawsuit seeking a declaratory judgment that the 2012 agreement was unenforceable 
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based on mutual mistake or lack of consideration. Pamela and Susan filed various counterclaims 

including counterclaims seeking to declare the 2012 agreement was valid and enforceable. As 

previously noted, the probate court initially granted summary judgment in Mollie’s favor; 

however, this court reversed the judgment and remanded the cause to the probate court for further 

proceedings. See id. 

Prior to trial, Pamela and Mollie settled their claims against each other. After three days 

of evidence was presented to the jury, the jury was charged with answering the following questions 

on the issues of consideration and mutual mistake:

QUESTION NO. 1:

With respect to the 2012 Agreement [PX26], do you find that Mollie did receive 

a benefit or Susan did incur a detriment?

Answer “Yes” or “No.”

Answer: ___________

QUESTION NO. 2:

Was Mollie Child’s failure to comply with the 2012 Agreement [PX26] 

excused?

Failure to comply with an agreement is excused if the agreement was made as the 

result of a mutual mistake.

A mutual mistake results from a mistake of fact common to both parties if both 

parties had the same misconception concerning the fact in question. A mistake by 

one party but not the other is not a mutual mistake.

A mistake of persons as to their private legal rights and interests is a mistake of 

fact.

Answer “Yes” or “No.”

Answer: ___________
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The jury answered the first question “yes” and the second question “no.”2 After denying Mollie’s 

motion for a judgment notwithstanding the verdict, the probate court entered judgment declaring 

the 2012 agreement to be valid and enforceable and awarding Susan attorney’s fees. The probate

court subsequently denied Mollie’s motion for new trial. Mollie appeals.

SUFFICIENCY

In her first two issues, Mollie challenges the legal and factual sufficiency of the evidence 

to support the jury’s findings.

A. Burden of Proof

Mutual mistake is an affirmative defense. Santos v. Mid-Continent Refrigerator Co., 471 

S.W.2d 568, 569 (Tex. 1971) (per curiam); Garza v. Villarreal, 345 S.W.3d 473, 483 (Tex. App.—

San Antonio 2011, pet. denied). “‘The hallmark characteristic’ of an affirmative defense ‘is that 

the burden of proof is on the defendant to present sufficient evidence to establish the defense and 

obtain the requisite [jury] findings.’” Teal Trading & Dev., LP v. Champee Springs Ranches Prop. 

Owners Ass’n, 593 S.W.3d 324, 333 (Tex. 2020) (quoting Zorrilla v. Aypco Constr. II, LLC, 469 

S.W.3d 143, 156 (Tex. 2015)).

“The existence of a written contract . . . presumes consideration for its execution.” TLC 

Hosp., LLC v. Pillar Income Asset Mgmt., Inc., 570 S.W.3d 749, 761 (Tex. App.—Tyler 2018, pet. 

denied); accord Doncaster v. Hernaiz, 161 S.W.3d 594, 603 (Tex. App.—San Antonio 2005, no 

pet.). “[T]he party alleging lack of consideration has the burden of proof to rebut th[e]

presumption.”3

 TLC Hosp., LLC, 570 S.W.3d at 761; accord Doncaster, 161 S.W.3d at 603. 

2 Because the jury answered “no” to the second question, the jury did not answer the following additional question 

because it was premised on a “yes” answer to the second question: “Did Susan Addison substantially rely to her 

detriment on Mollie Childs’ promise, if any, and was this reliance foreseeable by Mollie Childs?”

3 We disagree with Mollie’s contention that the jury charge altered this burden of proof. We also note this court has 

generally stated “what constitutes consideration is a question of law.” Phila. Indem. Ins. Co. v. White, No. 04-12-

00721-CV, 2017 WL 32899, at *4 (Tex. App.—San Antonio Jan. 4, 2017, no pet.) (mem. op.). But see Hous. Med. 

Testing Servs., Inc. v. Mintzer, 417 S.W.3d 691, 696 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (“As an initial 
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B. Standard of Review

“The test for legal sufficiency is ‘whether the evidence at trial would enable reasonable 

and fair-minded people to reach the verdict under review.’ We credit evidence favoring the finding 

if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder 

could not.” Teal Trading & Dev., LP, 593 S.W.3d at 333 (quoting City of Keller v. Wilson, 168 

S.W.3d 802, 827 (Tex. 2005)). “A legal sufficiency challenge fails if more than a scintilla of 

evidence supports the finding.” Tex. Outfitters Ltd., LLC v. Nicholson, 572 S.W.3d 647, 653 (Tex. 

2019).

In reviewing a factual sufficiency issue, we consider all the evidence supporting and 

contradicting the finding. Plas–Tex., Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). 

“When a party attacks the factual sufficiency of an adverse finding on an issue on which she has 

the burden of proof, she must demonstrate on appeal that the adverse finding is against the great 

weight and preponderance of the evidence.” Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 

2001). In our review, we “must consider and weigh all of the evidence, and can set aside a verdict 

only if the evidence is so weak or if the finding is so against the great weight and preponderance 

of the evidence that it is clearly wrong and unjust.” Id.

When reviewing the sufficiency of the evidence supporting a jury’s findings, “we do not 

serve as a fact finder, pass upon the credibility of witnesses, or substitute our judgment for that of 

the trier of fact, even if there is conflicting evidence upon which a different conclusion could be 

matter, it was unnecessary for the jury to find that consideration supported the parties’ agreement because the question 

of consideration, while sometimes based upon ultimate facts found by the jury, is generally a question of law.”); Sibley 

v. Lawson, No. 11-12-00235-CV, 2014 WL 4347837, at *5 (Tex. App.—Eastland Aug. 29, 2014, no pet.) (mem. op)

(“The parties’ dispute regarding the consideration supporting the 2006 note is a genuine issue of material fact that 

precludes summary judgment.”). However, both the Texas Supreme Court and this court in Childs I have reversed

summary judgments, holding the absence of consideration was not conclusively established, and, in its decision, the 

Texas Supreme Court remanded the cause for “a trial on the merits.” Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 

492, 496 (Tex. 1991); In re Estate of Childs, 2016 WL 3452624, at *4. On appeal, neither party raises a challenge to 

the submission of the issue to the jury.
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supported.” Hausman v. Hausman, 199 S.W.3d 38, 41 (Tex. App.—San Antonio 2006, no pet.). 

“Jurors are the sole judges of the credibility of the witnesses and the weight to give their testimony. 

They may choose to believe one witness and disbelieve another.” City of Keller, 168 S.W.3d at 

819 (footnote omitted).

C. Consideration

As this court asserted in Childs I:

“Consideration is a bargained-for exchange of promises or return performance and 

consists of benefits and detriments to the contracting parties. . . . The surrender of 

a legal right constitutes valid consideration to support a contract.” Marx v. FDP, 

LP, 474 S.W.3d 368, 378 (Tex. App.—San Antonio 2015, pet. denied). “The 

compromise of doubtful and conflicting claims is good and sufficient consideration 

to uphold a settlement agreement.” Garza v. Villarreal, 345 S.W.3d 473, 483 (Tex. 

App.—San Antonio 2011, pet. denied). “To constitute valid consideration, 

forbearance to sue must be upon a right asserted in good faith, and as to a contention 

which the party relying on the forbearance had reasonable grounds for believing 

would be upheld.” S.A. Dome, L.L.C. v. Maloney Dev. P’ship, Ltd., No. 04-04-

00586-CV, 2005 WL 1398106, at *3 (Tex. App.—San Antonio June 15, 2005, no 

pet.) (mem. op.).

2016 WL 3452624, at *3.

Under the facts of this case, we find the Eastland court’s decision in Iden v. Ackerman, 280 

S.W.2d 643 (Tex. App.—Eastland 1955, writ ref’d), instructive. In Iden, Ellis and Dorothy Iden 

filed a suit against Mildred Ackerman and Helen Clanton seeking to rescind and cancel a mineral 

deed which conveyed to Mildred and Helen a mineral interest in an eighty-acre tract of land. Id.

at 644–45. Mildred and Helen were the daughters of Clyde and Effie McKee, and Dorothy was 

the sister of either Clyde or Effie. Id. 

In 1934, Clyde and Effie purchased an eighty-acre tract of land, executing two vendor’s 

lien notes as part of the consideration for the purchase which notes constituted community debt. 

Id. After Effie died intestate in 1935, Clyde was unable to pay the vendor’s lien notes, so he 
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conveyed the eighty-acre tract of land to Ellis who assumed the debt as partial consideration for 

the conveyance. Id. at 645. Ellis subsequently paid the vendor’s lien notes in full. Id.

In 1954, Mildred filed an affidavit in the deed records reciting that she and Helen owned 

and claimed an interest in the eighty-acre tract of land as Effie’s heirs. Iden, 280 S.W.2d at 645. 

A few days later, Ellis and Dorothy executed a mineral deed conveying a mineral interest in the 

land to Mildred and Helen, and, in exchange, Mildred and Helen executed a quitclaim deed 

conveying to Ellis and Dorothy any interest they had in the surface estate of the land. Id. In their 

subsequent suit, Ellis and Dorothy asserted the quitclaim deed did not convey any interest to them 

because Mildred and Helen did not have any interest in the land. Id. Therefore, Ellis and Dorothy 

alleged the mineral deed and the quitclaim deed lacked consideration. Id.

After a bench trial, the trial court entered judgment in favor of Mildred and Helen, finding 

the parties entered into a settlement agreement which they made effective by executing the deeds. 

Id. at 646. On appeal, Ellis and Dorothy asserted no evidence existed of a dispute between the 

parties at the time the settlement was purportedly consummated. Id. Iden rejected the assertion:

We cannot agree with the contention that the contract of compromise and 

settlement was without consideration. Generally, a mutual agreement to 

compromise a dispute is of itself a valuable consideration sufficient to support the 

contract. It was found by the court and appellants concede that Mildred Ackerman 

and Helen Clanton, in good faith, believed that they, as heirs of their mother, owned 

an interest in the land. The evidence shows that appellees were pressing their claim. 

Under such circumstances there was a valuable consideration for a contract of 

compromise in compliance with which deeds were exchanged vesting in the parties 

agreed interests in the land.

Id. (citations omitted). The court further noted the disputed claim was sufficient consideration 

even though Mildred and Helen’s claim was in fact “unfounded.” Id. (quoting 15 C.J.S. 

Compromise & Settlement § 11); see also Burgamy v. Davis, 313 S.W.2d 365, 367 (Tex. App.—

Fort Worth 1958, no writ) (“The test is not whether the debtor was correct in his contention, in 

that he really had a legal or equitable defense to the claim in whole or in part, but consists in the 
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fact that he in good faith urged or asserted a defense which he really believed was substantial.”);

In re Swift, 198 B.R. 927, 939 (Bankr. W.D. Tex. 1996) (“It is settled law that an agreement to 

release a claim held in good faith, even if the claim in fact turns out to be without merit, is sufficient 

consideration to support a compromise and settlement.”). Therefore, having found “there was 

evidence of a dispute between the parties at the time of the compromise agreement,” the court held 

the agreement was supported by consideration. Iden, 280 S.W.2d at 646. After further rejecting 

Ellis and Dorothy’s argument regarding a mutual mistake, the court stated the law and equity favor 

settlements among family members:

Voluntary compromise settlements, . . . among members of the same family . . .

where a claim is asserted in good faith by one or more of the parties and they 

intentionally put an end to all controversy by a voluntary transaction in the way of 

a compromise, are highly favored by courts of equity. They will not be disturbed 

for any ordinary mistake either of law or fact. Where all parties have the same 

knowledge, or means of obtaining knowledge, in respect to the circumstances 

concerning their rights, and there is no fraud, misrepresentation, concealment or 

conduct otherwise inequitable on the part of the other party, voluntary settlements 

entered into should be upheld, although the final issue may be different from that 

which was anticipated, and although the disposition made by the parties in their 

agreement may not be that which the court would have decreed had the dispute 

been brought before it for decision.

Id. at 647 (quoting Wedegartner v. Reichert, 218 S.W.2d 304, 309 (Tex. App.—Waco 1948, writ 

ref’d n.r.e.)).

In the instant case, the e-mails exchanged between Mollie, Pamela, and Susan are evidence 

of a dispute between them regarding their respective rights under the wills and the effect of the 

transfer on death accounts on those rights. Although Susan may have been less vocal in the 

dispute, there is sufficient evidence that she had the same dispute and concern as evidenced by her 

specific request for information regarding the Raymond James account.4

 We recognize that the 

4 We note the evidence included Pamela’s response to an e-mail from Mollie dated March 4, 2012. In Mollie’s email, she pleads with Pamela not to “do this” in response to Pamela’s e-mail informing Mollie she would be hearing 

from her “directly” after she had spoken with Susan “or you and mother will be hearing from someone representing 
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probate court subsequently entered a partial summary judgment concluding that the bequeath of 

the Campbell Taggert stock in Bertha’s will conveyed the stock “outright to her daughter, Marjorie 

Childs, and did not create a life estate.” But the fact that the dispute was unfounded under the law 

does not affect the jury’s finding that consideration existed. See Iden, 280 S.W.2d at 646. Just as 

Mildred and Helen were “pressing their claim” that they owned an interest in the land in Iden, see 

id., the jury could find from the evidence in the instant case that Susan was also “pressing [her] 

claim” that she was entitled to one-half of the Federated Securities account. Susan based her claim 

on the life estate she believed was created by Bertha’s will and the prior conveyance of stock into 

the joint brokerage account—from which Mollie received income of an undisclosed amount and 

which resulted in the sale of some shares of stock to pay off the account debt at the time the account 

was closed.

5

In her reply brief, Mollie asserts the 2012 agreement was not a family settlement agreement 

as that term is used in the probate context. We agree. See In re Estate of Lee, 551 S.W.3d 802, 

816 n.10 (Tex. App.—Texarkana 2018, no pet.) (“The Agreement is not properly classified as a 

family settlement agreement because it does not dispose of all of the estate’s property.”); In re 

Estate of Halbert, 172 S.W.3d 194, 200 n.11 (Tex. App.—Texarkana 2005, pet. denied) (noting 

family settlement agreements “must contain both an agreement not to probate a will and an agreed 

plan of distribution to replace the plan set forth in the will”). We disagree, however, that this 

affects the jury’s finding. A settlement agreement is favored in law and equity in the probate 

context even if the agreement is not considered a “family” settlement agreement. See

us.” In Pamela’s response to Mollie’s plea, Pamela informed Mollie that Susan’s attorney told her she had a case 

three years ago, and Susan had not spoken to Pamela since Pamela would not join her in a lawsuit. Pamela further 

noted, “She said that you would probably continue to try and screw us—and based upon the last four years of doing 

battle with you over almost everything to do with the RBC account and your last e[-]mail it is clear to me that perhaps 

she was correct.”

5 The jury could also have found from the evidence that one-third of the total number of shares of Anheuser Busch 

stock then held by Marjorie had been transferred to the joint brokerage account.
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Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 178 (Tex. 1997) (“Texas law favors and 

encourages voluntary settlements and orderly dispute resolution.”). 

We overrule Mollie’s first issue.

D. Mutual Mistake

Mollie next challenges the sufficiency of the evidence to support the jury’s finding that her 

compliance with the 2012 agreement was not excused by a mutual mistake of fact. Specifically, 

Mollie contends Pamela’s, Susan’s, and her belief—that Bertha’s will created a life estate—was a 

mutual mistake of fact.

The jury was properly instructed in the charge that “[a] mistake of persons as to their private 

legal rights and interests is a mistake of fact.”6

 See Herrmann v. Lindsey, 136 S.W.3d 286, 292 

(Tex. App.—San Antonio 2004, no pet.) (“[I]f the parties at issue enter into the contract based on 

a mutual mistake about some legal right a party possesses or does not possess prior to the contract 

at issue, the party may be entitled to rescission of the contract on equitable grounds.”); Furnace v. 

Furnace, 783 S.W.2d 682, 686 (Tex. App.—Houston [14th Dist.] 1989, writ dism’d w.o.j.)

(quoting Columbian Nat’l Fire Ins. Co. v. Dixie Co-op, 276 S.W. 219, 221–22 (Tex. Comm’n App.

1925, judgm’t adopted)) (noting a contract may be set aside if it was based on a mutual mistake as 

to private legal rights and interests). One of the factual issues the jury was required to consider in 

answering this question was whether Mollie was actually mistaken about the existence of the life 

estate.

6 We note “it is the court’s charge, not some other unidentified law, that measures the sufficiency of the evidence

when the opposing party fails to object to the charge.” Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000). Although 

we acknowledge this instruction was discussed during the jury charge conference, it is unclear whether Susan was 

objecting to the instruction as not being a correct statement of the law as opposed to not being law applicable to the 

facts of the case. On appeal, Susan contends the question regarding mutual mistake should not have been submitted, 

not that the instruction was an erroneous statement of the law.
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At trial, Mollie initially testified she first discovered Bertha’s will contained “precatory 

language,” which resulted in an outright bequest of the stock to Marjorie as opposed to the creation 

of a life estate, when the probate court judge made reference to that term during the hearing on 

Susan’s contest to her appointment as independent executor. See Knopf v. Gray, 545 S.W.3d 542, 

547 n.7 (Tex. 2018) (per curiam) (“Precatory language requests, recommends, or expresses a desire 

rather than a command.”). Evidence was presented, however, that Mollie referenced that term in 

an e-mail to Pamela on March 1, 2009, more than three years before the 2012 agreement was 

signed. In that e-mail, Mollie referred to Marjorie choosing “to pass [the stock] on to us” and 

asserted “you may or may not accept that she had a choice but the precatory language of the will 

[Bertha] wrote did leave mom the choice.” In an earlier e-mail to Pamela dated February 28, 2009, 

Mollie asserted “please understand that when mom revised her will this year, she decided to follow 

grandmother’s will but she was not obligated to do so . . . . [I]t is and always has been mother’s 

money.” Finally, in a subsequent e-mail to Pamela also dated February 28, 2009, Mollie quotes 

an e-mail she sent to Susan which stated, “Please keep in mind the account is and always has been 

mother’s property . . . .” 

Mollie’s brief cites to evidence the jury could consider in finding she believed Bertha’s 

will created a life estate and that Marjorie’s will controlled over the transfer on death accounts, 

including e-mails in which Mollie reassures Pamela and Susan that Marjorie’s will controls over 

the transfer on death accounts.

7

 The jury, however, was free to believe Mollie took actions and 

made reassurances despite believing the “precatory” language in Bertha’s will did not create a life 

estate and that the transfer on death accounts would control. See City of Keller, 168 S.W.3d at 

819. Such a finding was particularly within the jury’s province given Mollie’s initial testimony 

7 In her reply brief, Mollie emphasizes the references to life estate in the 2012 agreement; however, the jury was 

required to consider all the evidence.
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that she first heard the term “precatory” from the probate court judge. See id. Because we defer 

to the jury’s assessment regarding the credibility of the witnesses and the weight to be given the 

evidence, and because the jury may choose to believe some statements made by Mollie and to 

disbelieve others, we conclude the evidence is legally and factually sufficient to support the jury’s 

finding that Mollie was not excused from complying with the 2012 agreement. See id.

We overrule Mollie’s second issue.

ATTORNEY’S FEES

In her final issue, Mollie contends the probate court abused its discretion in awarding Susan 

$184,319.20 in attorney’s fees because (1) the award was not just and equitable,

8 and (2) Susan 

failed to segregate her fees among her various counterclaims.

Because Susan sought a declaratory judgment, Mollie concedes the probate court was 

statutorily authorized to award “reasonable and necessary attorney’s fees as are equitable and just.” 

See TEX. CIV. PRAC. & REM. CODE ANN. § 37.009. Under section 37.009, “[t]he decision of 

whether to award attorney’s fees is within the discretion of the trial court, but the question of 

whether attorney’s fees are equitable and just is a question of law.” City of Lorena v. BMTP 

Holdings, L.P., 409 S.W.3d 634, 646 (Tex. 2013). “The determination of what fees are equitable 

and just is ‘not susceptible to direct proof but is rather a matter of fairness in light of all the 

circumstances.’” Minihan v. O’Neill, No. 04-18-00847-CV, 2020 WL 444381, at *9 (Tex. App.—

San Antonio Jan. 29, 2020, no pet.) (mem. op.) (quoting Ridge Oil Co. v. Guinn Invs., Inc., 148 

S.W.3d 143, 162 (Tex. 2004)). 

8 The parties stipulated the fees were reasonable and necessary.
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A. Equitable and Just Fees

Here, Susan prevailed at a jury trial, and based on the jury’s findings, the probate court 

declared the 2012 agreement to be valid and enforceable. Accordingly, we conclude the award of 

attorney’s fees was equitable and just. See id.

B. Segregating Fees

“[A] claimant must segregate legal fees accrued for those claims for which attorney’s fees 

are recoverable from those that are not.” Kinsel v. Lindsey, 526 S.W.3d 411, 427 (Tex. 2017)

(citing Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 314 (Tex. 2006)). “[T]he need to 

segregate fees is a question of law.” Tony Gullo Motors I, 212 S.W.3d at 312. However, “when 

discrete legal services advance both a recoverable and unrecoverable claim [such] that they are so 

intertwined [then] they need not be segregated.” Id. at 313–14. 

Here, all of Susan’s claims were based on the same facts regarding the 2012 agreement and 

Mollie’s statements relating to that agreement, including her statements relating to the stock, the 

wills, and the transfer on death accounts. Accordingly, we conclude segregation was not required.

We overrule Mollie’s third issue.

CONCLUSION

Having concluded the evidence was legally and factually sufficient to support the jury’s 

findings, and the probate court did not err in awarding attorney’s fees, we affirm the probate court’s 

judgment.

Patricia O. Alvarez, Justice