                                                                                  ACCEPTED
                                                                              04-15-00623-CV
                                                                  FOURTH COURT OF APPEALS
                                                                       SAN ANTONIO, TEXAS
                                                                       11/23/2015 12:14:38 PM
                                                                               KEITH HOTTLE
                                                                                       CLERK

                        NO. 04-15-00623-CV
                   IN THE COURT OF APPEALS
                                                     FILED IN
              FOR THE FOURTH DISTRICT OF TEXAS 4th COURT OF APPEALS
                        AT SAN ANTONIO          SAN ANTONIO, TEXAS
                                                     11/23/2015 12:14:38 PM
                                                        KEITH E. HOTTLE
                                                              Clerk
              IN RE ESTATE OF MARJORIE A. CHILDS


                  On Appeal from Probate Court No 2,
                         Bexar County, Texas
__________________________________________________________________

                     BRIEF OF APPELLANTS
                PAMELA ANN CHILDS McCASKILL
                  AND SUSAN CHILDS ADDISON
__________________________________________________________________

                               JUDITH R. BLAKEWAY
                               State Bar No. 02434400
                               judith.blakeway@strasburger.com
                               JAMES. MAVERICK McNEEL
                               State Bar No. 24035491
                               james.mcneel@strasburger.com
                               STRASBURGER & PRICE, LLP
                               2301 Broadway Street
                               San Antonio, Texas 78215
                               (210) 250-6000 / (210) 258-6100 (fax)

                               ATTORNEYS FOR APPELLANTS


                 ORAL ARGUMENT REQUESTED
                   IDENTITY OF PARTIES AND COUNSEL

      In accordance with Rule 38.1(a) of the Texas Rules of Appellate Procedure,

Appellant provides the following complete list of all parties and counsel to the trial

court’s order that forms the basis of this appeal.

                   Party                                      Counsel
Pamela Ann Childs McCaskill                     JUDITH R. BLAKEWAY
  Appellant                                     State Bar No. 02434400
                                                judith.blakeway@strasburger.com
                                                JAMES MAVERICK MCNEEL
                                                State Bar No. 24035491
                                                james.mcneel@strasburger.com
                                                DAVID P. STANUSH
                                                STATE BAR NO. 19056300
                                                david.stanush@strasburger.com
                                                ANDREW L. KERR
                                                andy.kerr@strasburger.com
                                                STATE BAR NO. 11339500
                                                STRASBURGER & PRICE LLP
                                                2301 BroadwayStreet
                                                San Antonio, Texas 78205
                                                (210) 250-6004 Telephone
                                                (210) 258-2706 Facsimile


Susan Childs Addison                            BEN A. WALLIS, III
      Appellant                                 State Bar No. 24060793
                                                BEN A. WALLIS LAW PC
                                                8200 IH 10 West #101
                                                San Antonio, Texas 78230
                                                (210) 525-1500 / (210) 525-9323 (fax)
                                                baw3@wallislawsa.com




                                          ii-
                Party                        Counsel
Mollie Allen Childs,           DAVID JED WILLIAMS
      Appellee                 State Bar No. 21518060
                               jwilliams@hfgtx. com
                               RUDY A. GARZA
                               State Bar No. 07738200
                               rugar@hfgtx. com
                               CHARLES M. HORNBERGER
                               State Bar No. 10002700
                               boxy@hfgtx. com
                               STEPHANIE L. CURETTE
                               State Bar No. 24076780
                               scurette@hfgtx. com
                               HORNBERGER SHEEHAN FULLER &
                               GARZA, INC.
                               7373 Broadway, Suite 300
                               San Antonio, Texas 78209
                               (210) 271-1700 / (210) 271-1730 (fax)




                        iii-
                                           TABLE OF CONTENTS

Identity of Parties and Counsel ................................................................................. ii

Table of Contents ......................................................................................................iv

Statement of the Case................................................................................................. 1
Issues Presented ......................................................................................................... 2

Statement of Facts ...................................................................................................... 3
Summary of Argument .............................................................................................. 9

Standard of Review .................................................................................................. 11
Argument.................................................................................................................. 12

         I.        The trial court erred in granting Mollie Child’s motion for
                   summary judgment. ............................................................................. 12

                   A.        There are genuine issues of material fact about whether
                             the mistake was material and mutual. ....................................... 14
                   B.        There are genuine issues of material fact about whether
                             the agreement to split the proceeds of the Anheuser
                             Busch stock among the three sisters lacks consideration. ........ 20

         II.       The trial court erred in granting rescission. ........................................ 23
                   A.        Mollie Childs did not plead for rescission. ............................... 23
                   B.        Mollie Childs has unclean hands. ............................................. 23

Prayer ....................................................................................................................... 26

Certificate of Service ............................................................................................... 27

Certificate of Compliance ........................................................................................ 28

Appendix .................................................................................................................. 29




                                                              iv-
                                      TABLE OF AUTHORITIES

                                                                                                           Page(s)
CASES

Argee Corp. v. Solis,
   932 S.W.2d 39 (Tex. App.—Beaumont 1995), rev’d on other grounds sua
   nom. Green Int’l v. Solis, 951 S.W.2d 384 (Tex. 1997) .............................................. 23

Badouh v. Hale,
  22 S.W.3d 392 (Tex. 1999) ...................................................................................... 21

Barr v. Daggett,
  153 S.W. 120 (Tex. 1913) ........................................................................................ 21
Buck v. Palmer,
  381 S.W.3d 525 (Tex. 2012) .................................................................................... 11

Burnett v. James,
  564 S.W.2d 407 (Tex. Civ. App.—Dallas 1978, writ dism’d)............................. 23
Bush v. Gaffney,
  84 S.W.2d 759 (Tex. App.—San Antonio 1935, no writ) .................................... 23
Cavazos v. Cavazos,
  246 S.W.3d 175 (Tex. App.—San Antonio 2007, pet. denied) ........................... 20
Chambers v. Huggins,
  709 S.W.2d 219 (Tex. App.—Houston [14th Dist.] 1986, no writ) .................... 13

City of Keller v. Wilson,
   168 S.W.3d 802 (Tex. 2005) .................................................................................... 11
Cooper v. Cochran,
  288 S.W.3d 522 (Tex. App.—Dallas 2009, no pet.) ............................................. 23

De Monet v. PERA,
  877 S.W.2d 352 (Tex. App.—Dallas 1994, no writ) ........................... 12, 13, 17, 18

Durham v. Uvalde Rock Asphalt Co.,
  599 S.W.2d 866 (Tex. Civ. App.—San Antonio 1980, no writ).......................... 17
Estes v. Republic Nat’l Bank,
   462 S.W.2d 273 (Tex. 1970) .................................................................................... 12

                                                         v-
Goodyear Tire & Rubber Co. v. Mayes,
  236 S.W.3d 754 (Tex. 2007) .................................................................................... 12

Green v. Morris,
  43 S.W.3d 604 (Tex. App.—Waco 2001, no pet.) ................................................ 13

Hale v. Hollon,
  39 S.W. 287 (Tex. 1897)........................................................................................... 21

Huie v. DeShazo,
  922 S.W.2d 920 (Tex. 1996) .................................................................................... 24

Lesikor v. Rappeport,
   33 S.W.3d 202 (Tex. App.—Texarkana 2000, pet. denied) ................................. 24

Missouri, K & T Ry. Co. v. Edwards,
  176 S.W. 60 (Tex. Civ. App.—Texarkana 1915, no writ).................................... 22

Montgomery v. Kennedy,
  669 S.W.2d 309 (Tex. 1984) .................................................................................... 24
Morales v. Morales,
  98 S.W.3d 343 (Tex. App.—Corpus Christi 2003, pet. denied) ............................ 20, 22

Myrad Props., Inc. v. LaSalle Bank Nat’l Ass’n,
  300 S.W.3d 746 (Tex. 2009) .................................................................................... 16

Neely v. Wilson,
  418 S.W.3d 42 (Tex. 2013) ...................................................................................... 11

Nixon v. Mr. Prop, Mgmt. Co.,
   690 S.W.2d 546 (Tex. 1985) .................................................................................... 11

Parker v. Blackmon,
  553 S.W.2d 623 (Tex. 1977) .................................................................................... 20

Petrey v. John F. Buckner & Sons,
   280 S.W.2d 641 (Tex. Civ. App.—Waco 1955, writ ref’d n.r.e.) ....................... 13

Plains Cotton Co-op Ass’n v. Wolf,
   553 S.W.2d 800 (Tex. Civ. App.—Amarillo 1977, writ ref’d n.r.e.) ...... 17, 20, 22




                                                         vi-
Schenck v. Ebby Halliday Real Estate Inc.,
   803 S.W.2d 361 (Tex. App.—Fort Worth 1990, no writ) .................................... 23

Simpson v. Simpson,
   387 S.W.2d 771 (Tex. Civ. App.—Eastland 1965, no writ) ................................ 17

Sun Oil Co. v. Bennett,
   125 Tex. 540, 84 S.W.2d 447 (Tex. 1935) ............................................................. 12
Taylor v. Arlington Indep. School Dist.,
   335 S.W2d 371 (Tex. 1960) ......................................................................................... 16

Walden v. Affiliated Computer Services, Inc.,
  97 S.W.3d 303 (Tex. App.—Houston [14th Dist.] 2003, pet. denied)................ 13

Wallerstein v. Spirt,
  8 S.W.3d 774 (Tex. App.—Austin 1999, no pet.) ................................................. 12
Williams v. Glash,
   789 S.W.2d 261 (Tex. 1990) .................................................................. 12, 13, 16, 17
RULES

TEX. R. CIV. P. 166(a)(c),(i) ........................................................................................... 11
OTHER AUTHORITIES

7 A. Corbin, CONTRACTS § 28.41 (Rev. ed. 2002) ............................................................ 22

8 A. Corbin, CONTRACTS § 38.10 at 468 (Rev. ed. 1999) ................................................. 21

RESTATEMENT (SECOND) OF CONTRACTS § 152 (1981) .............................................. 17




                                                           vii-
                          STATEMENT OF THE CASE
      This is an action to void a contract for mutual mistake and lack of

consideration. Bertha Allen’s will left certain stock to her daughter Marjorie.
Marjorie had three daughters—Mollie, Pamela and Susan. Before their mother
died, they entered into an agreement to divide two brokerage accounts containing

proceeds of the stock that they expected to receive on their mother’s death. After
their mother died, Mollie sought to avoid the agreement, claiming that it was based
on a mutual mistake—that Bertha’s will gave her daughter Marjorie only a life

estate in the stock—and lacked consideration. The probate court held that Bertha’s
will left the stock outright to her daughter Marjorie and did not create a life estate.
      The parties filed cross-motions for summary judgment. Pamela (joined by

Susan) moved for summary judgment on Mollie’s claim that the agreement was
unenforceable for mutual mistake, arguing that the assumption that the will
conveyed only a life estate in the stock was a mistake of law which is not a ground
for avoiding a contract. Mollie responded and filed a motion for reconsideration
of a previously denied motion for summary judgment that the agreement was
unenforceable for lack of consideration and mutual mistake.
      The trial court reconsidered, granted Mollie’s motion, denied Pamela’s and
Susan’s motion, found that the agreement was unenforceable and rescinded as a
matter of law, and certified its order for interlocutory appeal. This Court granted
permission to appeal.
                            ISSUES PRESENTED

I.    The trial court erred in granting Mollie’s motion for summary
      judgment because:
      •     there are genuine issues of material fact about whether the
            mistake was mutual and material
            1.    there are genuine issues of material fact about whether
                  Mollie held the mistaken belief that her grandmother’s will
                  gave her mother only a life estate in the stock when Mollie
                  agreed to split the proceeds with her sisters; and
            2.    there are genuine issues of material fact about whether the
                  mistake about the life estate was material;
            3.    the mistake that was the basis for the bargain—that all
                  three daughters were beneficiaries of the Raymond James
                  account—was not mutual; and
      •     there are genuine issues of material fact about whether the
            agreement to split the brokerage accounts among the three sisters
            lacks consideration
            1.    Each sister gave up her expectancy under her
                  grandmother’s or her mother’s will in exchange for the split
                  set forth in the agreement;
            2.    Pamela and Susan’s forbearance to sue is consideration for
                  the agreement; and
            3.    Pamela and Susan mistakenly believed that they were
                  beneficiaries under the Raymond James account because
                  that is what Mollie told them; she should not now profit
                  from her own wrongdoing.
II.   The trial court erred in granting rescission because:
      •     Mollie did not plead for it; and
      •     there are genuine issues of fact about whether Mollie has unclean
            hands.



                                       2
                           STATEMENT OF FACTS

      Bertha Allen was the mother of Marjorie Allen Childs and the grandmother

of Marjorie’s three daughters: Mollie Allen Childs, Pamela Ann Childs McCaskill,

and Susan Kaye Childs Addison. C.R. 667.

      Bertha Allen owned stock in Campbell Taggart (which was later acquired by

Anheuser Busch). C.R. 667. In her will she left the stock to her daughter, Marjorie

Allen Childs:

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

C.R. 261, 667-68.

      Bertha died, and her will was admitted to probate in 1981. C.R. 668.

      In 1992, Marjorie made a gift to Mollie of about $190,000 of the stock.

C.R. 668. The accountant obtained the amount from Mollie, no appraisal was done.

C.R. 786, 788. (He testified that he found it “astounding” that stock that is now

worth collectively $6 million, that one third of it in 1992 was worth only $190,000.

C.R. 787).



                                         3
      In 1993, Marjorie created the Marjorie Allen Childs Trust. Marjorie and

Mollie were trustees. Marjorie was beneficiary during her life; and Mollie, Pamela

and Susan were remainder beneficiaries. C.R. 997-1006.

      From at least the time Marjorie moved into the Forum assisted living facility

in 2005, until Marjorie’s death in 2013, Mollie was in charge of all of Marjorie’s

finances. C.R. 669. In 2008, Marjorie gave Mollie her power of attorney.

4 Supp. C.R. 1195–96.

      In November 2008, InBev acquired Anheuser Busch and redeemed the stock

for cash. C.R. 668. This precipitated some estate planning by Marjorie and Mollie.

C.R. 751. Mollie, who was a lawyer, C.R. 784, asked for a legal opinion about

whether Bertha Allen’s will left a life estate. In 2008, Mike Donelson, Marjorie’s

accountant, retained James Beck to determine if Bertha’s will created a life estate.

He discussed with Mollie Mr. Beck’s answer that “it could go either way.”

C.R. 694, 771. He told her that the Bertha Allen life estate language was

“precatory,” meaning that no one had to follow it. C.R. 780. Mollie knew from

what Mr. Beck opined that it was 50/50 or 60/40 in favor of a life estate, but far

from certain. C.R. 817.

      Mr. Donelson never had any conversation with his client Marjorie, about

whether there was a life estate; he spoke only with Mollie. C.R. 702-703. He never

met Marjorie, C.R. 828, he met only Mollie. C.R. 705. Mollie never told him about



                                         4
the beneficiary designations on the Raymond James account. C.R. 720. He did not

know that Mollie had put her name on the Raymond James account as beneficiary.

C.R. 829:18-22. Mollie was the one running the show with regard to accounts and

helping him report the taxes. C.R. 733, 772.

      Mollie had James Beck, an attorney in Houston, prepare a will for her

mother. Mr. Beck never met Marjorie in person. 4 Supp. C.R. 299–300. All

communications with Mr. Beck were through Mollie or in Mollie’s presence.

4 Supp. C.R. 299. He did not inquire into assets owned by Marjorie or how they

were titled. 4 Supp. C.R. 308–09. Mr. Beck was not informed of Marjorie’s

previous gifts to Mollie, 4 Supp. C.R. 324–25, or any account designations.

4 Supp. C.R. 308, 336–37.

      On November 20, 2008, Marjorie signed the will prepared by Mr. Beck, in

which she left the Anheuser stock per stirpes to her three daughters:

                   Remainder Interest under Bertha Allen’s Will

             Pursuant to the requirement 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.



                                         5
C.R. 662.

      On December 23, 2008, just a month after signing her will, Marjorie opened

two brokerage accounts with the proceeds from the redemption of the Anheuser

Stock—one at Federated Securities Inc., and the second at Raymond James &

Associates. C.R. 668. Two-thirds of the proceeds of the sale of the Anheuser shares

were placed in a Federated account representing Pamela and Susan’s shares.

C.R. 668. Mollie’s one-third of the stock was placed in a Raymond James account.

      When she opened the Federated account, Marjorie Childs executed a

transfer-on-death   (TOD)    account    agreement,    designating    the   following

beneficiaries: Mollie Childs (33%), Pamela McCaskill (34%), and Susan Addison

(33%). She also executed a TOD account agreement at Raymond James that listed

only Mollie as a beneficiary. Mollie filled out the Raymond James account form

and then had her mother sign. 1 Supp. C.R. 136:14-137:16; 138:14-23; Ex 33.

      Contrary to what she wrote on the account, Mollie told Pamela and Susan

that all three children were listed as TOD beneficiaries on the Raymond James

account, as well as on the Federated Account. Ex 38; 1 Supp. C.R. 205:1-7;

216:11-16. Mollie did not tell her sisters she was sole beneficiary on the Raymond

Jones account. 1 Supp. C.R. 286:19-24. Mollie also told her sisters that the transfer

on death designation was “meaningless” and their grandmother’s will would

control how the accounts were distributed. Ex 46; 1 Supp. C.R. 166:16-22.



                                         6
      In 2009, Mollie knew it was possible that the IRS would construe the

language in Bertha’s will as precatory so that the will did not create a life estate,

and the funds would either go under the TOD, or the sisters would have to agree on

a disposition. 1 Supp. C.R. 183:21–184:17. James Beck, a lawyer retained to give

an opinion on whether Bertha’s will created a life estate in the stock, told Mollie

that he “didn’t know for sure and the only way to determine it would be to do a

declaratory judgment.” 4 Supp. C.R. 300:23–301:12. Despite being advised by a

lawyer that it was possible, if not probable, that their mother did not hold the stock

under a life estate, but owned it outright, Mollie told Pamela and Susan that the

accounts would pass under the life estate created in Bertha’s will. C.R. 694, 771,

780, 817.

      After Mollie admitted to Pamela and Susan that she had already received her

share of the stock in 1992, Pamela and Susan threatened to sue or take action to

protect Marjorie’s wishes if Mollie did not equalize the accounts. C.R. 669. Pamela

consulted an attorney about suing Mollie. C.R. 669. Mollie pleaded with Pamela

not to sue her and agreed to relinquish her interest in the Federated account:

“please don’t do this … I don’t want or need your money. I will not take your

money … I will honor the history … if you want me to sign something you draft

reassuring you I do not want the rbc life estate I will do so.” 1 Supp. C.R. 205:10-

206:14 Ex 42. Pamela, Mollie, and Susan then signed an agreement to split the



                                          7
proceeds in the brokerage accounts, and Pamela and Susan forbore from suing

Mollie. The agreement provided:

                      Agreement Regarding Remainder Interest
                            in Bertha Allen Life Estate

      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 767-00625 at Federated Securities, the other under account
      1460714 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.

C.R. 677; C.R. 669.

      Marjorie Childs passed away in 2013, and her will was admitted to probate

in 2014. C.R. 670. Mollie was the executrix. C.R. 662. When Mollie refused to

honor the agreement, a dispute arose between the three sisters. C.R. 671.

      Mollie sued Susan and Pamela, seeking a declaratory judgment that Marjorie

owned the funds in the Federated and Raymond James accounts outright, and

asking the Court to determine whether the “Agreement Regarding Remainder

Interest in Bertha Allen Life Estate” was valid and enforceable, including

(1) whether there was consideration for the agreement and (2) whether the




                                          8
agreement was made under a misconception of material fact, namely, that the

funds in the accounts were subject to a life estate only. C.R. 162-79.

      The trial court, after initially denying summary judgment to Mollie,

C.R. 159, reconsidered and granted summary judgment, holding the agreement

unenforceable and rescinded as a matter of law. C.R. 1321. The trial court certified

its order for interlocutory appeal, C.R. 1321, and this Court granted Pamela’s and

Susan’s petition for interlocutory appeal.

                          SUMMARY OF ARGUMENT

      To void a contract due to mistake, the mistake must be mutual and material.

The alleged mistake here—whether Bertha Allen’s will created a life estate in the

stock— is neither. There are genuine issues of material fact about whether Mollie

held the mistaken belief that her grandmother’s will gave her mother only a life

estate in the stock when Mollie agreed to split the proceeds with her sisters. Her

testimony to that effect is belied by her earlier actions

      •      in accepting a gift of the stock from her mother in 1992 (which her
             mother would have no right to give if all she had was a life estate);
             and

      •      by designating herself as a beneficiary on the TOD account (which
             would have been ineffective if all her mother had was a life estate).
      Moreover, Mollie’s subjective statements about her belief are incompetent

summary judgment evidence. Because she is an interested witness, her testimony

does nothing more than create a fact issue. A jury was not required to believe


                                             9
Mollie’s self-serving after-the-fact testimony. Accordingly, the court erred in

granting summary judgment.

      There are genuine issues of material fact about whether the mistake about

the life estate was material. The purpose of the agreement was to partition the

daughters’ equal interests. Whether the daughters’ expectancy of receiving equal

shares of the proceeds derived from Bertha’s will or Marjorie’s will was

immaterial. If there was a life estate, each child would take one-third under

Bertha’s will. If there was not, each child would take one-third under Marjorie’s

will. And—as far as Susan and Pamela knew—each child would take one-third

under the TOD beneficiary designations on each account.

      The mistake that was the basis of the bargain—that all three daughters were

beneficiaries of both the Federated account and the Raymond James account—was

not mutual. The “mistake” that Pamela and Susan made was that they thought they

were beneficiaries of the Raymond James account so they could exchange their

interest in that account for Mollie’s interest in the Federated account. That mistake

was not mutual. Mollie knew better.

      There are genuine issues of material fact about whether the agreement to

split the proceeds of the Anheuser Busch stock among the three sisters lacks

consideration. Each sister gave up her expectancy under her grandmother’s or her

mother’s will in exchange for the split in the agreement—that is consideration.



                                         10
Pamela and Susan’s forbearance to sue is also consideration for the agreement.

Susan and Pamela mistakenly believed that they were beneficiaries of the

Raymond James account because that is what Mollie told them; she should not

now be heard to claim otherwise after they relied on her representations in entering

into the agreement.

      Finally, the trial court erred in granting rescission because:

      •      Mollie did not plead for it; and

      •      Mollie has unclean hands.

      The trial court erred in granting summary judgment to Mollie. Its judgment

should be reversed and remanded.

                             STANDARD OF REVIEW

      Summary judgments are reviewed de novo. Neely v. Wilson, 418 S.W.3d 42,

509 (Tex. 2013). The movant for a traditional summary judgment has the burden of

showing that there is no genuine issue of material fact and that he is entitled to

judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop, Mgmt.

Co., 690 S.W.2d 546, 548 (Tex. 1985). A fact issue exists if there is more than a

scintilla of probative evidence. Buck v. Palmer, 381 S.W.3d 525, 527 & n.2 (Tex.

2012); TEX. R. CIV. P. 166(a)(c),(i). The record is reviewed “in the light most

favorable to the nonmovant, indulging every reasonable inference and resolving

any doubts against the motion.” City of Keller v. Wilson, 168 S.W.3d 802, 824

(Tex. 2005). An appellate court reviewing a summary judgment must consider

                                            11
whether reasonable and fair minded jurors could differ in their conclusions in light

of all of the evidence presented. Goodyear Tire & Rubber Co. v. Mayes,

236 S.W.3d 754, 755 (Tex. 2007).

                                   ARGUMENT

I.    The trial court erred in granting Mollie Child’s motion for summary
      judgment.
      Under Texas law, when parties to an agreement have contracted under a

mutual misconception of material fact, the agreement is voidable under the

doctrine of mutual mistake. Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990).

However, the doctrine of mutual mistake is applied only in rare circumstances in

order to allow parties to “rely on the finality” of their agreements and to prevent

the routine use of the doctrine to avoid the effects of an “unhappy bargain.” Id. at

265; see Wallerstein v. Spirt, 8 S.W.3d 774, 781 (Tex. App.—Austin 1999, no

pet.). A mutual mistake must be proven by “clear, exact, and satisfactory

evidence.” Estes v. Republic Nat’l Bank, 462 S.W.2d 273, 75 (Tex. 1970) (citing

Sun Oil Co. v. Bennett, 125 Tex. 540, 84 S.W.2d 447, 452 (Tex. 1935)). To be

entitled to rescind an agreement due to a mutual mistake, a party must show that

there exists (1) a mistake of fact, (2) held mutually by the parties, (3) which

materially affects the agreed upon exchange. Wallerstein, 8 S.W.3d at 781;

De Monet v. PERA, 877 S.W.2d 352, 357 (Tex. App.—Dallas 1994, no writ).




                                        12
      The evidence must show that both parties were acting under the same

misunderstanding of the same material fact. Walden v. Affiliated Computer

Services, Inc., 97 S.W.3d 303 (Tex. App.—Houston [14th Dist.] 2003, pet.

denied); Green v. Morris, 43 S.W.3d 604, 606 (Tex. App.—Waco 2001, no pet.).

      “[T]he mistake must relate to the subject matter of the contract and not to a

matter that is merely collateral or incidental to the contract.” Petrey v. John F.

Buckner & Sons, 280 S.W.2d 641, 643 (Tex. Civ. App.—Waco 1955, writ ref’d

n.r.e.); see also De Monet, 877 S.W.2d at 359 (relief only appropriate where

mistake upsets basis of contract); Chambers v. Huggins, 709 S.W.2d 219, 224

(Tex. App.—Houston [14th Dist.] 1986, no writ) (requiring party show that

mistake was mutual and that it was material inducement to transaction).

      The question of mutual mistake is determined not by “self-serving subjective

statements of the parties’ intent . . . but rather solely by objective circumstances.”

Williams, 789 S.W.2d at 264. These include the knowledge of the parties and the

substance of the negotiations at the time of the contract execution. De Monet,

877 S.W.2d at 358; see Williams, 789 S.W.2d at 24.




                                         13
      A.     There are genuine issues of material fact about whether the
             mistake was material and mutual.

             1.    There are genuine issues of material fact about whether—
                   when Mollie agreed to split the proceeds of the Anheuser
                   Busch stock with her sisters—Mollie held the mistaken
                   belief that her grandmother’s will gave her mother only a
                   life estate.
      Mollie now says she believed that her mother had only a life estate in the

Anheuser Bush stock. But her recent testimony is belied by her earlier actions. If

Mollie truly believed that a valid life estate was created by Bertha’s will, then she

must have known that in 1992 her mother had no right to gift her $190,000 of

shares of the Anheuser Bush stock. The fact that Mollie took the stock is some

evidence that she thought her mother had the right to give it to her, i.e., that the

bequest in her grandmother’s will was an outright gift, not merely a life estate.

      If Mollie really thought that a valid life estate was created by Bertha’s will,

then she must have known when she filled out the TOD account forms and had her

mother sign them, that those forms would be ineffective because any right to the

stock would pass to Mollie and her sisters under Bertha’s will, not under any TOD

designation. There would have been no reason to designate herself as the sole

beneficiary of the Raymond James account, no reason to hide what she had done

from her sisters, and no reason to affirmatively misrepresent to them that they were

also beneficiaries on that account when they were not.




                                         14
      This evidence would support an inference that Mollie did not believe that

Bertha’s will created just a life estate. A jury could infer from these actions that

Mollie believed that her mother owned the proceeds of the stock outright.

      Additional evidence supports the conclusion that Mollie—unlike her

sisters—was not laboring under the misapprehension that all her mother owned

was a life estate. Mollie had obtained a legal opinion that the language in Bertha’s

will was merely precatory, and it was possible that her mother did not have merely

a life estate, but actually owned the stock. Mollie was an attorney and much more

knowledgeable in legal affairs than her sisters. Mollie knew that if her mother in

fact owned the proceeds of the stock outright, Mollie would get all the Raymond

James account under the TOD beneficiary designation. Mollie knew—but her

sisters did not—that she was the only beneficiary of the Raymond James account.

Mollie knew that the agreement whereby her sisters gave up their (nonexistent)

rights to the Raymond James account would be unenforceable for lack of

consideration. Mollie knew that ultimately Mollie would get much more than the

one-third of her mother’s estate that her mother intended her to have.

      Moreover, the summary judgment evidence relied on by Mollie—the

subjective statements of the parties—is incompetent to establish mutual mistake.

Mutual mistake is determined by the objective circumstances surrounding the

execution of the document and not by self-serving, subjective statements of the



                                         15
parties’ intent. Myrad Props., Inc. v. LaSalle Bank Nat’l Ass’n, 300 S.W.3d 746,

751 (Tex. 2009) (“The question of mutual mistake is determined not by self-

serving subjective statements of the parties’ intent, which would necessitate trial to

a jury in all such cases, but rather solely by objective circumstances surrounding

execution of the contract”); Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990)

(same).

      The only witness testifying about Mollie’s mistaken belief was Mollie, who

was an interested witness. The testimony of an interested witness does no more

than raise a fact issue to be determined by the jury. Taylor v. Arlington Indep.

School Dist., 335 S.W2d 371, 376 (Tex. 1960). “When testimony comes from an

interested party and is of such a nature that it cannot be readily contradicted if

untrue, an issue relating to the credibility of the witness is presented.” Id. That is

the situation here. Mollie’s testimony did nothing more than create an issue of fact

to be determined by the jury as to whether a mistake was in fact made.

      In sum, a jury was not required to believe Mollie’s self-serving after-the-fact

testimony. There was ample evidence from which a jury could conclude that

Mollie had a motive and the opportunity to obtain a disproportionate share of her

mother’s estate. Because there was more than a scintilla of evidence that Mollie

did not enter into the agreement under a mistake of fact and Mollie’s testimony




                                         16
was incompetent, the trial court erred in granting summary judgment for Mollie. Its

judgment should be reversed and remanded for trial.

            2.     There are genuine issues of material fact about whether the
                   mistake about the life estate was material.
      Where a mistake of both parties at the time the contract was made as to a

basic assumption on which the contract was made has a material effect on the

agreed exchange of performances, the contract is voidable. . . .” RESTATEMENT

(SECOND)   OF   CONTRACTS §152 (1981); Durham v. Uvalde Rock Asphalt Co.,

599 S.W.2d 866, 869 (Tex. Civ. App.—San Antonio 1980, no writ) (a material

mistake is one that involves the subject matter of the contract and the substance

thereof); de Monet v. PERA, 877 S.W.2d 352, 357 (Tex. Civ. App.—Dallas, 1994,

no writ) (same).

      A mutual mistake is not material if it relates merely to a collateral matter. It

must be “essential to an understanding of the consequences of the agreement.”

Plains Cotton Co-op Ass’n v. Wolf, 553 S.W.2d 800, 805 (Tex. Civ. App.—

Amarillo 1977, writ ref’d n.r.e.) (quoting Simpson v. Simpson, 387 S.W.2d 771,

719 (Tex. Civ. App.—Eastland 1965, no writ)).

      When determining the materiality of such a mistake, a court considers the

surrounding circumstances, the contract itself, the knowledge of the parties at the

time of the contract, the extent of negotiations and discussions regarding the

alleged mutual mistake, and the amount of consideration paid. See Williams,


                                         17
789 S.W.22d at 264; de Monet v. PERA, 877 S.W.2d 352 (Tex. App.—Dallas

1994, no writ).

      Here the basic assumption underlying the contract was that all three children

would share equally in the proceeds of the Anheuser Busch stock. The agreement

was to partition their equal interests. C.R. 670. Whether the daughters’ expectancy

of receiving equal shares of the proceeds derived from Bertha’s will (if all Marjorie

had was a life estate) or Marjorie’s will (if Bertha left the stock to Marjorie

outright) was immaterial. If there was a life estate, each child would take one-third

under Bertha’s will. If there was not, each child would take one-third under

Marjorie’s will. And—as far as Susan and Pamela knew—each child would take

one-third under the TOD account designations on both accounts.

      Pamela and Susan did not know that Mollie was the sole beneficiary of the

Raymond James account. Mollie did not tell them. Mollie told them they were all

three beneficiaries of both accounts. Mollie told them that all Marjorie had was a

life estate so their expectation was that they would receive their share of the stock

proceeds under Bertha’s will. So it did not matter what the beneficiary designation

on the accounts said or how Marjorie left the stock in her will.

      Mollie, on the other hand, knew that it was doubtful that Marjorie had a life

estate in the stock, knew she had already received a disproportionate share of her

mother’s estate, and knew that on her mother’s death, she would get all of the



                                         18
Raymond James account. So it was not important to her that her sisters give up

their interests in the Raymond James account because she knew they had no such

interests. That was not what she was bargaining for in the agreement; instead she

was attempting to mollify her sisters and stave off a lawsuit.

      At a minimum, there is conflicting summary judgment evidence about the

parties’ knowledge, the substance of the negotiations, and the significance of

Mollie’s misrepresentations. Therefore, the trial court erred in granting Mollie

summary judgment.

             3.     The mistake that was the basis of the bargain—that all
                    three daughters were beneficiaries of both the Federated
                    account and the Raymond James account—was not mutual.
      In the contract the agreed-on exchange was that Pamela and Susan would split the

Federated account, and Mollie would get the Raymond James account. That agreement

makes sense only if all three daughters have interests in both accounts. The “mistake”

that Pamela and Susan made was that they thought they were beneficiaries of the

Raymond James account, as well as the Federated account. That mistake was not mutual.

Mollie knew better. But she did not tell anyone—not her sisters, 1 Supp. C.R. 205:1-7;

not the lawyer who prepared her mother’s will, 4 Supp. C.R. 307–08, 336–37; not the

accountant who advised her, 1 Supp. C.R. 204:1-17. What, in Mollie’s view, makes the

contract unenforceable is that her sisters did not give her anything in exchange for her

share of the Federated account because she already owned all of the Raymond James

account. But that fact was known to Mollie when she signed the contract.



                                          19
       If the facts had been as Mollie represented, then whether Bertha’s will left the

stock in a life estate or outright would have made no difference—all three daughters

would have shared equally either way. It was the TOD account designation on the

Raymond James account that was determinative, not whether Bertha’s will created a life

estate. And that key fact was known by Mollie, but not by her sisters. They executed the

contract in reliance on Mollie’s false representations. These facts afforded Pamela and

Susan grounds to be relieved from the contract, but do not allow Mollie to escape from a

bargain she made knowing that she was the sole beneficiary of the Raymond James

account. Morales v. Morales, 98 S.W.3d 343, 347 (Tex. App.—Corpus Christi 2003, pet.

denied); Plains Cotton Corp. Ass’n v. Wolf, 553 S.W.2d 800, 804 (Tex. Civ. App.—

Amarillo 1977, writ ref’d n.r.e.).

       B.     There are genuine issues of material fact about whether the
              agreement to split the proceeds of the Anheuser Busch stock
              among the three sisters lacks consideration.
              1.     Each sister gave up her expectancy under her
                     grandmother’s or her mother’s will in exchange for the split
                     in the agreement—that is consideration.
       Mollie contends that the agreement is without consideration because, when

they entered the agreement in 2012, Pamela and Susan held no remainder interests

in the accounts, and thus no expectancy interests to divide. Both Pamela and Susan

were heirs of their mother who had not yet died. An expectancy interest in an

estate is adequate consideration to support a contract. Cavazos v. Cavazos,

246 S.W.3d 175, 180 (Tex. App.—San Antonio 2007, pet. denied); Parker v.



                                          20
Blackmon, 553 S.W.2d 623, 624 (Tex. 1977). Here, each sister gave up her

expectancy to inherit the proceeds of the Anheuser Busch stock under their

grandmother’s or mother’s will in exchange for the accounts set forth in the

agreement.

      The facts that none of the children had a present right to any of the funds

during Marjorie’s life, and she could change the account beneficiaries, or her will,

or spend the money before her death, do not prevent an agreement to exchange

those rights from being supported by consideration. The “expectancy” of an

inheritance or a legacy or a devise or other gift is a right that can constitute

consideration, even though there is nothing as yet that can be transferred and the

expectant heir or donee has, as yet, no present rights that can be assigned.

Nevertheless, if such person promises to turn over to the promisee money or

property she shall afterwards receive as an heir or legatee or donee if and when she

actually receives it, such a promise is enforceable if and when the condition in fact

occurs and is sufficient consideration for a promise given in exchange for it.

Badouh v. Hale, 22 S.W.3d 392 (Tex. 1999); Hale v. Hollon, 39 S.W. 287 (Tex.

1897); Barr v. Daggett, 153 S.W. 120 (Tex. 1913).

      An agreement between two expectant persons, each of which hope for
      a legacy, or inheritance, or other gift, that they will share equally
      between them or in other agreed portions, has been held to be a valid
      contract.

8 A. CORBIN, CONTRACTS §38.10 at 468 (Rev. ed. 1999).

                                         21
            2.     Pamela and Susan’s forbearance to sue is consideration for
                   the agreement.
      Before Mollie signed the agreement, Pamela and Susan threatened to sue

her. Mollie, to forestall any such suit or action by her sisters, agreed to—and did—

sign an agreement relinquishing her interest in the Federated account. So Pamela

and Susan did not sue her. Their forbearance is adequate consideration for the

agreement. Missouri, K & T Ry. Co. v. Edwards, 176 S.W. 60, 61 (Tex. Civ.

App.—Texarkana 1915, no writ) (settlement of a disputed claim is sufficient

consideration for a promise because of the detriment to the party consenting to the

compromise arising from the alteration of his position).

            3.     Susan and Pamela mistakenly believed that they were
                   beneficiaries of the Raymond James account because that is
                   what Mollie told them; she should not now be heard to
                   claim otherwise after they relied on her representations in
                   entering into the agreement.
      When a party enters a contract under a mistaken belief induced by the other

party, the innocent party is the one who has the option to rescind the agreement,

not the one who was responsible for the mistake. Morales v. Morales, 98 S.W.3d

343, 347 (Tex. App.—Corpus Christi 2003, pet. denied); Plains Cotton Coop.

Ass’n v. Wolf, 553 S.W.2d 800, 804 (Tex. Civ. App.—Amarillo, 1977, writ ref’d

n.r.e.); 7 A. CORBIN, CONTRACTS §28.41 (Rev. ed. 2002).




                                         22
      Here, Mollie lied to Susan and Pamela when she told them they were

beneficiaries on both accounts. They executed the contract in reliance on her false

representation. If a mistake was made, it was brought about by Mollie’s

misrepresentations. She should not be permitted to get out of a contract on the

ground of lack of consideration when she knew that her sisters did not have any

interest in the Raymond James account that they believed they were giving up in

exchange for the Federated account.

II.   The trial court erred in granting rescission.
      A.     Mollie Childs did not plead for rescission.
      It was error for the trial court to grant Mollie the relief of rescission because

she did not plead for such relief. C.R. 162-76. Rescission must be specifically

pleaded. Cooper v. Cochran, 288 S.W.3d 522, 533 (Tex. App.—Dallas 2009, no

pet.); Burnett v. James, 564 S.W.2d 407, 409 (Tex. Civ. App.—Dallas 1978, writ

dism’d); Argee Corp. v. Solis, 932 S.W.2d 39, 66 (Tex. App.—Beaumont 1995),

rev’d on other grounds sua nom. Green Int’l v. Solis, 951 S.W.2d 384 (Tex. 1997).

Mollie pleaded for declaratory relief, not rescission. C.R. 171. Thus, the trial court

erred in awarding her rescission.

      B.     Mollie Childs has unclean hands.
      To be entitled to rescission, a plaintiff must show that she has clean hands.

Bush v. Gaffney, 84 S.W.2d 759, 764 (Tex. App.—San Antonio 1935, no writ);

cf. Schenck v. Ebby Halliday Real Estate Inc., 803 S.W.2d 361, 366 (Tex. App.—

                                         23
Fort Worth 1990, no writ) (rescission under DTPA). Pamela pleaded that Mollie

had unclean hands C.R. 182, and supported that pleading with evidence sufficient

to create a fact issue.

       There is more than a scintilla of evidence that Mollie does not have clean

hands. As the executrix of her mother’s estate and trustee of her trust, she owes

fiduciary duties to her sisters, who are the beneficiaries of both. Montgomery v.

Kennedy, 669 S.W.2d 309, 313 (Tex. 1984) (“Executors of the estate owed

beneficiary ‘a fiduciary duty of full disclosure of all material facts known to them

that might affect [beneficiary’s] rights. The existence of strained relations between

the parties did not lessen the fiduciary’s duty of full and complete disclosure.”) See

also Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex. 1996); Lesikor v. Rappeport,

33 S.W.3d 202, 296-97 (Tex. App.—Texarkana 2000, pet. denied). But she abused

her trust, assuring her sisters that they could trust her to treat them fairly precisely

because she was a fiduciary: “i will be fair with you and Susan because i am in a

fiduciary relationship with mother, and i take that very seriously … as a lawyer my

career called me to act as a fiduciary. …” Ex 43. Mollie did not treat them fairly.

She did not fully disclose all material facts to them; instead she deceived and

defrauded them.

       Mollie is an attorney; she has specialized knowledge that her sisters do not.

She consulted with an attorney before entering into the agreement and was told that



                                          24
the question whether her grandmother left the stock to her mother outright or in a

life estate was a close question that could go either way. 1 Supp. C.R. 218:21–

219:17.

      If Mollie truly believed a valid life estate existed, then she must have known

that when their mother made her a $190,000 gift of the stock in 1992, she had no

right to do so. Yet Mollie took the stock. The fact that she did so is some evidence

that she thought that her mother had the right to give it to her, i.e.—that the bequest

in her grandmother’s will was an outright gift, not merely a life estate.

      Mollie also knew when she filled out the TOD accounts, they were not

effective either, because if all Marjorie had was a life estate, then any right to the

stock would pass to Mollie and her sisters under Bertha’s will, not under any TOD

designation. The fact that she nevertheless filled out the TOD account for the

Raymond James accounts so that her mother left it all to her as the sole beneficiary

is some evidence that she knew that her mother did not have a life estate, but had

the power to dispose of the account. This conclusion is further corroborated by the

fact that she did not tell her sisters what she had done. In fact, she told them the

exact opposite—that Pamela and Susan were also beneficiaries of the Raymond

James account—which she knew was not true.

      Her sisters relied on what she told them in entering the agreement under the

mistaken belief that they were giving up their rights to the Raymond James account



                                          25
in exchange for the Federated account. Mollie should not now be permitted to

profit from her own wrongdoing by claiming that there was no consideration for

the agreement (because they are not beneficiaries of the Raymond James account)

when she is the one who told her sisters they were beneficiaries of that account.

                                     PRAYER

      Pamela and Susan respectfully pray that the trial court’s order granting

summary judgment and rescission be reversed and the case be remanded for trial,

and for such other relief to which Pamela and Susan may be entitled in law or

equity.

                                          Respectfully submitted,


                                          ____/s/ Judith R. Blakeway    _______
                                          JUDITH R. BLAKEWAY
                                          State Bar No. 02434400
                                          judith.blakeway@strasburger.com
                                          JAMES MAVERICK MCNEEL
                                          State Bar No. 24035491
                                          james.mcneel@strasburger.com
                                          STRASBURGER & PRICE, LLP
                                          2301 Broadway Street
                                          San Antonio, Texas 78215
                                          (210) 250-6000 Telephone
                                          (210) 240-6100 Facsimile

                                          ATTORNEYS FOR APPELLANTS




                                         26
                           CERTIFICATE OF SERVICE

      Pursuant to E-Filing Standing Order, I certify that on November 23, 2015, I

electronically filed the foregoing with the Clerk of Court using the

EFile.TXCourts.gov electronic filing system which will send notification of such

filing to the following:


       Rudy A. Garza                         Ben A. Wallis, III
       rugar@hfgtx.com                       Ben A. Wallis Law PC
       Charles M. Hornberger                 8200 IH 10 West #101
       boxy@hfgtx.com                        San Antonio, Texas 78230
       David Jed Williams                    baw3@wallislawsa.com
       jwilliams@hfgtx.com
       Stephanie L. Curette                  Attorneys for Appellant
       scurette@hfgtx.com                    Susan Kaye Childs Addison
       Hornberger Sheehan Fuller & Garza,
       Inc.
       The Quarry Heights Building
       7373 Broadway, Suite 300
       San Antonio, Texas 78209
       Telephone: (210) 271–1700
       Facsimile: (210) 271–1730

       Attorneys for Appellee
       Mollie Allen Childs


                                               /s/ Judith R. Blakeway
                                              JUDITH R. BLAKEWAY




                                       27
                      CERTIFICATE OF COMPLIANCE

      In accordance with Tex. R. App. P. 9.4(i)(1), I hereby certify that this Brief

of Appellants contains no more than 5,880 words.


                                              /s/ Judith R. Blakeway
                                              JUDITH R. BLAKEWAY




                                         28
                                      APPENDIX

1.        5/14/15 order granting/denying Plaintiff’s motion for partial summary
          judgment

2.        9/18/15 order regarding motions for summary judgment
3.        Will of Bertha Allen

4.        Will of Marjorie Allen Childs
5.        Agreement Regarding Remainder Interests of Bertha Allen Life Estate




                                           29
1980340.4/SPSA/34092/0102/112315
APPENDIX 1
                                      CAUSE NO. 2014-PC-0056


IN THE ESTATE OF                                         §           IN PROBATE COURT
                                                         §
MARJORIE A. CHILDS,                                      §           N0.2
                                                         §
DECEASED.                                                §           BEXAR COUNTY, TEXAS



                        ORDER GRANTING/DENYlNG PLAINTIFF'S
                     MOTION FOU PARTIAL SUMMARY JUDGMENT

        On May 12, 2015, the Court heard Plaintiffs Motion for Partial Summary

Judgment.      Mter considering the Motion, Defendants' Responses to Plaintiffs

Motion for Partial Summary               ~Judgment,          the summary judgment evidence, and the

arguments of counsel, the Court grants the Motion in part and denies it in part.

The Court grants the Motion to the extent that it finds and orders that the bequest

of shares of Campbell Taggert Associated Bakeries stock in Section II of the Will of

Bertha Allen was outright to her daughter, Marjorie Childs, and did not create a life

estate. All other relief requestEld in the Motion is denied.


         SIGNED this 4day of May 2015 .




                                          .2

               BY:   -'--"r~~::._:.:::::::::::;J/iAJ._




{00091304.2}
                                                                    V0 2 I 5 b P lb 0 3
APPENDIX 2
                                CAUSE NO. 2014-PC-0056


IN THE ESTATE OF                           §           IN PROBATE COURT
                                           §
MARJORIE A. CHILDS,                        §           N0.2
                                           §
DECEASED.                                  §           BEXAR COUNTY, TEXAS


           ORDER REGARDING MOTIONS FOR SUMMARY JUDGMENT

          On September 15, 2015, the Court considered the following motions,

responses, replies, admissible evidence attached and filed, and arguments of

counsel:

          1. Defendant Pamela McCaskill's Motion for Partial Summary Judgment;

          2. Plaintiff Mollie Childs' Response, Motion for Reconsideration and Cross
             Motion for Partial Summary Judgment;

          3. Defendant Pamela McCaskill's Response to Plaintiffs Cross Motion for
             Partial Summary Judgment and No Evidence Motion for Partial
             Summary Judgment; and

          4. Defendant Susan C. Addison's Response to Plaintiffs Motion for
             Reconsideration and Cross Motion for Partial Summary Judgment and
             No-Evidence Motion for Partial Summary Judgment

          Upon reconsideration. the Court vacates the portion of its May 14, 2015

Order denying Plaintiffs Motion for Partial Summary Judgment and GRANTS

Plaintiff Mollie Childs' Motion for Reconsideration and Cross Motion for Partial

Summary Judgment. The Court DENIES Defendant Pamela McCaskill's Motion

for Partial Summary Judgment.




{00103062.1)
                                    VD21bSPzqzz
                                                                               11?1
          The Court finds that the Agreement Regarding Remainder Interests of the

Bertha Allen Life Estate ("Agreement") is unenforceable and rescinded as a matter

oflaw.

          The Court further finds that:

              1. This order and the Court's findings involve controlling questions oflaw as
                 to which there are substantial grounds for differences of opinion; and

          2. An immediate appeal from this order will materially advance the ultimate
             determination of the litigation because this order is dispositive of the
             determination of the validity and enforceability of the Agreement that
             forms the basis of claims in this case.

          Therefore, Pursuant to Texas Rule of Civil Procedure 168, it is ORDERED

that any party to this cause may file an interlocutory appeal of this order under

Texas Civil Practice and Remedies Code §51.014(d). In the event that an

interlocutory appeal is filed and accepted by the court of appeals, all further

proceedings in this Court shall be stayed pending that appeal.


          SIGNED this         ;.f day of September 2015.

                                                 JUDGE, PROBATE COURT NO. 1




                         SEP 2 3 20 S




lOOJ0:306~.   11                                2


                                                                                  11??
 Submitted By:

HORNBERGER FULLER
& GARZA INCORPORATED
The Quarry Heights Building
7373 Broadway, Suite 300
San Antonio, TX 78209-3266
TEL: (210) 271-1700
FAX: (210) 271-1730

By: Is I David Jed Williams
   Rudy A. Garza
   Email: rugar@hfgtx.com
   State Bar No. 07738200
   Charles M. Hornberger
   Email: boxy@hfgtx.com
   State Bar No. 10002700
   David Jed Williams
   Email: jwilliams@hfgtx.com
   State Bar No. 21518060
   Stephanie L. Curette
   Email: scurette@hfgtx.com
   State Bar No. 24076780

ATTORNEYS FOR PLAINTIFF




l00103062.q


                                V021   b5P2q2~·
                                                  11?1
APPENDIX 3
..



     STATB OF~                 l
                               l                            KHOII ALL Kim liY 'DIES& ~RESENTS:
     coUBTt or BEXAA            x
             That I, Bertha AUell, of Bc:lQir County, Te:ua, do aake and publish ancl declare

     th1a    1!\ll~l'UIII~nt   to be cy Last 'll:Ul ilnd                 Tet~tlllll8nt,   henby tiiVOking all willa by 111e

     at any tiaa beretofor:a '118de.
                                                                         ....
                                                                            ~   ..
             I direct that all.                  mr        juat debta be paid.

                                                                          II.

              I give lliU .aharu o~ stock owned hy me. in Campball 'rii!SBUt Aaaoc1ated Balutriaa,

         Inc. at the tima of my d~th to cy d&Uflhter, Marjarta AU~n CbUda, with the -r~queat
                                                   '                                                                        :
         that abe use bnl) tba ~~~~~~ in cash dividends from sa:ld abarea dur1Dg her 11fatime

         and that on ber death ah. 'Uir.e proviaioa for said attarea ·to be clividad equally among
                                        '          !                                  .                       .

         ,bet' daughtan, ar tha                  ia~ue
                                      of any deceased daqhter. Should it hecSIIa wise at any
     !                                             . .       .                           .
         tille to sell tbeee ahare+, it ie my deeire that 'the proe4eda, or any reinveetment

         of the proceeds, b.e held; and disposed ol: by m.y d.auabtet ·at bar death iu the aa~~~a

         manner.

                                                                            III.

               1 give all the rest and residua of 111y estate to my daughter, Marjorie                                    All~n

          Childs, or i f ahe be dec:aaaed, to her c:hildren or the issue of any deceased child,

          per stirpea, share 8Dd ahara alika.

                                                                                IV.
               (a)     1 llODillllte axu( appoint ay daughtu, Karjprie Allen Cbilde, Independant

          Rxecutdx of this              =Y Will,             and 1n the ·event that abe shall nat be eurv1v1l\s or be
                                                       I
          incapable en: umril.linS ~ act: at the tlma of my dellth, I theu ncmiuate and appoint

          her hueban.d, Paul                E,   Chi~da, Indap811dent !:ucutor of tbia my Will.                    I direct that

          uo baud shall be          t~e~~uire~ of either lilY Exec~tm or !xecutor and that oo other·
          aetiou shall be had in the County Court iu 'recordi1111 of this my WUl and the r~turn
                                    .                   l                                         .
          of etatutoey·iaventory, ~pprdaBIUIIlt and Uet of claims of aaid estate and of all

          cla:llae due ani! ow!Jis to 'iDe at the tble of '1111 death,
                                .                      .I
                (b)    1 authorise                lln!l      empower my lxecuttix or :becutor, aa the c:ue 111ay ba,

          to aall, d:l.apoae of, dal~ver aud c.ouvey any portion of my estate, real or personal,

          oot specitically          devise~                  at publ1c or private aale for            ~ny   price on any terms:, and

          in any IIIA'Dilet' th11t IDSY s,.m to thm but, for the purp08e of p11y:l.ng aey of my debu

          or for any purpose that' tbey 'IIIAY deem proper.                               In addition, my Executrix or Executor

          shall have all poweta gira to truateee'geoerelly under the lawa of the State of Texas.

                                                                                                                                       ~
                                                                                                                     81021~4




                                                                                                2154P0405
•'




          'Xhia I 1Uka and publlah aa my Laat Will, bereuuto                 signing and aubscdhing f1l'/

     name th1B the~ clay of October, 1980! iu the presence of S:f.dn!)l A., Bpark.a

     end _ _,i..,u..,th.._.G..,,~Sp~a.::r.:k.a=....------- who ·a.tteat the 8l!llle at my request.




           Tl\e above iuatnm.ent was uow here published aa 'her Last Will, and aianed awl

     aubacdhed by Bertha Allen, the teatatrb:::, in our preeeuce, and we, at bar request,

     in ber presence. and in the prea~mea of each other, sip and eubacribe oui- tllllllaa

     thereto aa attaattus witneeaaa.




                                                                                                       Witness




      STAT& OJ tBXAS          l
                              I
      COUNTY OF BBXAR         l
            Before ma, the IUiderllisnod authority, au this day 'P&r&oualLy appeared

      Bertha Allen, _...!S~:!.~d~oa:;x~A~.-"s:.tP::•:::r:ks=------ and      Ruth G. Spades
      known to me to be tj!&t&ttix and the wttueaaea, respectively, whoee                    Nllll8&   ara aubacribed

       to the annexed or foregoing inatrumeut iu their reapect:!.ve capacitiee~ aud all of aaid

       perscms being by      1118   duly awcnn, the aaid Bertha Allen, testatrix, declared to me and

       to the said witueseea 1u 111 pruei\C(\ that aaid inatl'UIIIaut is her Last Will and Teatamen

       and tbae ebe had wilHngly          ll&de   IIUd exec~tsd ~t u her free 11ct and deed             tar tire
       purposes thereiu expreased; and the said witneaaee, each on their oath stated to me,

       1n the   'Preeenct~   and hsarina of the eaid testatrix, that the aaid uatatrilC bad dec:.lared

       to thB111 that eatd instTulllent        111 her Last lUll ai1CI    Test~~a~ent,   and that she mtecuted

       the same as such and wanted aach of thB!II to l!isn it as a witneas; and upon their oaths

       eac:b witnaea stated          further   tbs~   they   d~d   aign the ame as witnesses in the presence

       of said testatrix and at her request; that 11he was at tha tima nineteen yeara of age

       or over atid waa of sound lllnd; and that each of 11aid witueeea waa then at least:
       fourteen years of age.



                                                                                           t:{I f ;.
                                                                                                   ·'I I /
                                                                                               Testatrix

                                                                                                       81021445
                                                              -z.:.




                                                         ~OZl5llP040b
                                                                                                                    RR
..




                           Buba~bed          and ackngwledged    bafa~e     •• by the .aid Bertha Allen,                             teataer~,

                  slld subscribed and           IIWOrn   'ta before   .118 by   the said _.,:S::;:i::::d:::ne:.:Y"'-=A:.:•:_:.Sp&::a:.:rb:=:...----- and

                  _....:Ru=tb::.....::G:.:.·~Bi!.lpa=rk=•=-------• vitnaaaea, tbJ.a ~day of October, 1980.




                                                                                       Notary Public, lleRr County, Texas
                                                                                   .       S.I\VWNAH C. GTO:lTI
                                                                                       I~OT,'.'aY   l'IJ!l!JC   I~   ;.ltD i'OR

                                                                                       My commission expires March 31, 1981




                                                                                                                                      81021446




     ~~Y<·:::. . :.·~:. :~:·.·......   · ·. . . .                 . .. . . .                                           . : .·. . . ·.~·_.·_.:·. :(· .:. ~:~~·.·.~:_.::·~{~5~·
     .        .                          .


                                                                                    V.OZ.\54P0401
                                                                                                                                                                        R7
APPENDIX 4
                                                         JAMES R. BECK
                                                                                              ,.   .. ,.._....   ..
                                                            ATTORNEY AT LAW
                                                   14614 FALLING CREEK DRIVE, SUITE 132.
                                                         HOUSTON, TEXAS 77068




                                                                                                      JAN 0 9 2014
                               LAST WILL AND TESTAMENT



                                                  MARJORIE A. CHILDS


THE STATE OF TEXAS                      *
                                                                          KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF BEXAR                         "'


          That I, MARJORIE A. CHILDS, a resident ofBexar County, Texas, make and publish this my LAST
WILL AND TESTAMENT, and I revoke all Wills and other testamentary instruments previously made by
me.
                                                         ARTICLE I.
                                                         Identification
          .1.Ql     I am a single woman.
          1.02      I have three (3) children who are living: PAMELA ANN CHILDS MCCASKILL, SUSAN
KAYE CHILDS ADDISON, and MOLUE ALLEN CHILDS. All references in this Will to "my children"
(or to other similar phrases) are only to them. All references in this Will to "my descendants'' (or to other
similar phrases)are to my children identified above and their legitimate descendants, including descendants
by adoption.
                                                         ARTICLE II.
                                                  Tangible Personal Property
          2.01      I give and bequeath the following property to my daughter PAMELA ANN CHILDS
MCCASKILL:
                    (a)        my diamond watch;
                    (b)        my diamond channelyset wedding band;
                    (c)        four place settings of my Francis I silverware;
                    (d)        two large Waterford goblets;


F:\Data\Ciient\C\Cbilds, Marioric\W·PO-Will.wpd
                                                                                                                      ~
                                                                                                                      (Initials)
                    (e)       my four piece silverplate large coffee urn, creamer, sugar and oblong tray;
                    (f)       four silver goblets; and
                    (g)       all of my Blue Danube china.
         2.02       I give and bequeath the following property to my daughter SUSAN KAYE CHILDS
ADDISON:
                    (a)       my 25th anniversary white gold and diamond dinner ring;
                    (b)        four silver goblets;
                    (c)        two large Waterford goblets;
                    (d)        four place settings of my Francis I silverware;
                    (d)        my Community Plate silverware (six dinner settings with serving pieces); and
                    (e)        my Georgian five piece silverplate coffee service with oval tray.
          2.03      I give and bequeath the following property to my daughter MOLLIE ALLEN CHILDS:
                    (a)        four silver goblets;
                    (b)        four place settings of my Francis I silvetware;
                    (c)        two large and two small Waterford goblets;
                    (d)        my pewter coffee service with coffeepot, creamer and sugar and tray;
                    (e)        my antique creamer and sugar;
                     (f)       my diamond and platinum engagement ring;
                     (g)       my azalea pattern china; and

                     {h)       my Waterford bowls, biscuit barrels, and candle sticks.
          2.04       I give my silver water pitcher to my daughters who survive me, such water pitcher to be
owned and its use shared by them equally.
          2.05       I give and bequeath to my daughters who survive me all of my jewe1ry, crystal, dishes,
furniture, silverplate, art, trinkets, and other tangible personal property of a similar nature that is not
hereinabove specifically given and bequeathed to a named daughter of mine. If a daughter of mine does not
survive me, the gift to her under section 2.01, 2.02 or 2.03 of this Article II of my Will shall lapse and the
property she would othetwise have received shall be added to and included in the gift made to my surviving
daughters under this Section 2.05 of my Will.




F:\Data\Ciient\C\Childs, Marjorie\W-PO-Will. wpd              2
                                                     ARTICLE III.
                                      Remainder Interest under Bertha Allen's Wi II
        Pursuant to the requirements of the life estate created for my benefit under Section II ofthe Wil1 of
Bertha Allen, the Anheuser Busch stock, which is derived from the Campbell Taggart Associated, Inc.,
stock addressed in the aforementioned Section IT of Bertha Allen's Will, shall be distributed to my daughters
and their descendants, per stirpes. Furthennore, 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 disctributed to my
daughters and their descendants, per stirpes.
                                                     ARTICLE IV.
                                                    Residue of Estate
         ~         I give, devise and bequeath aH of the rest, residue and remainder of my estate, real, personal
and mixed, wheresoever situated, (including any lapsed gifts) to the Trustee of the trust established by that
certain Trust Agreement executed May 7, 1993 by myself as Trustor and by MOLLIE ALLEN CHILDS as
Trustee known as the MARJORIE ALLEN CHILDS TRUST, to be administered and disposed of as part
of the aforesaid trust.
         4.02      If for any reason the foregoing devise and bequest lapses or fails, then I give, devise, and
bequeath all of the residue of my estate, real, personal, and mixed, separate and community, wheresoever
situated. to my descendants per stirpes; or if no descendant of mine survives me, to my heirs-at-law.
                                                      ARTICLE V.
                                                 Fiduciary Appointments
          5.01      I appoint MOLLIE ALLEN CHILDS to be Independent Executrix of my Will and. estate. If
MOLLIE ALLEN CHlLDS does not qualify or, if having qualified, dies, resigns, becomes incapacitated or
otherwise ceases to act, I appoint PAMELA ANN CHTI..DS MCCASKILL to be Independent Executrix of
my Will and estate. IfP AMELA ANN CHILDS MCCASKILL does not qualify or, ifhaving qualified, dies,
resigns, becomes incapacitated or otherwise ceases to act, I appoint SUSAN KAYE CHILDS ADDISON
to be Independent Executrix of my Will and estate. Unless another meaning is clearly indicated or required
by context or circumstances, the term "Executor" shall also mean and include any alternates or successors,
and my references to Executor shall always mean Independent Executor.




                                                                                                          ~
F:\Data\Ciient\C\Childs, Mmjorie\W-PO-Will.wpd               3                                             (lniti~
         5.02       I grant to my Executor the continuing, absolute, discretionary power to deal with any
property, real or personal, held in my estate as freely as I might in the handling of my own affairs and I grant
to my Executor all powers conferred on trustees by the Texas Trust Code, and by any future amendments
to the Texas Trust Code or any corresponding statute, except for any instance in which the Texas Trust Code
or such other statutory provisions may conflict with the express provisions of this WilJ, in which instance
the provisions of this Will shall control. Such powers shall be exercised independently and without prior
approval of any court or judicial authority. My Executor shall be saved harmless from any liability for any
action, if done in good faith and without gross negligence, and any person dealing with my Executor shall
not be required to inquire into the propriety of any of the Executor's actions.
          5.04      No Executor serving hereunder shall receive compensation for services rendered by such
Executor. Every Executor shall be reimbursed for the reasonable costs and expenses incurred in connection
with such Executor's duties.
          5.05      My Executor may sell, exchange, partition, or otherwise dispose of any property, real or
personal, at public or private sale, for such purposes and upon such terms including options and sale on
credit, with or without security, as my Executor deems best.
          5.06      My Executor may, whenever required or permitted, divide or distribute any property, and
make such division or distribution in kind orin money, or in part kind and in part money, and without regard
to the income tax basis of any such property.
          5.07 · My Executor, in buying and selling assets, in lending and borrowing money, and in all other
transactions, irrespective of the occupancy by the same person of dual positions, may deal with himself or
herself in his or her separate, or any fiduciary capacity. This provision shall not apply to the extent that self-
dealing may not be waived by law.
                                                        ARTICLE VI.
                                                   Miscellaneous Provisions
          6.01       I direct that all my legal debts, the expenses of my last illness and funeral, and the expenses
 of administering my estate shall be charged against my residuary estate and may be paid in the order and out
ofthose assets of my residuary estate (including the income of my residuary estate) that my Executor deems
best. My Executor is specifically gi\len the right to renew, refinance and extend, in any form that my
 Executor deems best, any secured or unsecured debt or charge existing at the time of my death. Under no
 .;ircumstances shall my Executor be required to prepay any debt of mine.



F:\Data\Client\C\Childs, Maljorie\W-PO-Will. wpd              4
                                                                                                                 q
        6.02       For all purposes of this Will, if any beneficiary dies within thirty (30) days after my death,
such beneficiary shall be considered not to have survived me.
        6.03       In the event any person shall directly or indirectly attempt to oppose or set aside the probate
of this Will or to impair or invalidate any part of my Will, the share designated for said person shall be
forfeited; said person shall receive no interest whatsoever' in my estate; and any forfeited share shall be
distributed as if the beneficiary was deceased.
         6.04      Where context and circumstances require, the gender of all words used in this WiH shall
include the masculine, feminine and neuter, and the singular of all words shall include the plural and the
singular.
         6.Q5      If any provisions of this Will or of any Codicil hereto is held to be inoperative, invalid, or
illegal, it is my intention that all of the remaining provisions thereof shall continue to be fully operative and
effective so far as is possible and reasonable.
         6.06       The headings above the various provisions of this Will have been included only in order to
make it easier to locate the subject covered by each provision and are not to be used in construing this Will
or in ascertaining my intentions.


         IN TESTIMONY WHEREOF, I have placed my initials on each of the foregoing pages ofthis, my
LAST WILL AND TESTAMENT, and in the presence of two witnesses, who are acting as witnesses at my
request, in my presence and in the presence of each other, I hereunto sign my name on this the 2Q+!:l. day
 of   b\tr4em\le.r                              , 2008.


                                                                    'tn~A. CHILDS,
                                                                   MARlO
                                                                            a, fM£~Testatrix




            . - -· ., •- u....:,...,.\W.PO.Will.wnd        s
                                                                         V02l2llPq1Q3
         The foregoing instrument was signed by the Testatrix, MARJORIE A. CHILDS, in our presence and
declared by her to be her LAST WILL AND TESTAMENT, and we the undersigned witnesses, sign our
names hereunto as witnesses at the request and in the presence ofthe said Testatrix, and in the presence of
each other, on this the 20~                   day of ~O'lembe.r   , 2008.




 F:\Data\Ciient\C\Childs, Mllljorie\W·PO-Will. wpd          6
                                                                                                     11
   .ESTATE OF TEXAS                                *
COUNTY OF BEXAR                                    *
         BE;FO~ ME, the undersigned authority, on this day personally appeared MARJORIE A.           CHILDS,
 Ce-la\lca IJ~morc.                           and fraocc'iaM.Puk\(\s                          ,knowntometo
be the Testatrix and the Witnesses, respectively, whose names are subscribed to the annexed or foregoing
instrument in their respective capacities, and, all of said persons being by me duly sworn, MARJORIE A.
CHILDS, Testatrix, declared to me and to the said Wifi;lesses in my presence that said instrument is her
LAST WILL AND TESTAMENT, and that she had willingly made and executed it as her free act and deed
for the purposes therein expressed; and the said Witnesses, each on his or her oath stated to me, in the
presence and hearing of the said Testatrix, that the said Testatrix had declared to them that said instrument
is her LAST WILL AND TESTAMENT, and that she executed the same and wanted each of them to sign
it as a Witness; and upon their oaths each Witness stated further that they did sign the same as witnesses in
the presence of the said Testatrix and ather request; that she was at that time 18 years of age or over and was
of sound mind; and that each of said Witnesses was then at least 14 years of age.




                                                               MARfORIE A. CHILDS, Testatrix




        SUBSCRIBED AND SWORN TO before me by the said MARJORIE A. CHILDS, Testatrix, by the
said Oc.ie'-l.ti Pa;,:af1\0r<e        and hat\C.e.~ tJ\. Pg~\t\ ~             , witnesses,
this the '2..o1:1l... day of HcweM'oV    , 2008.




                                                                Notary Public, State of Texas




F:\Data\Ciient\C\Childs, Mllljoric\W-PO·Will.wpd        7         V0 2 I .2 ~ Pq 1 0 5
                                                                                                            1?
APPENDIX 5
                                                                                                                             Page 1   ~



I.
                            ..llftiiQC Alfll'dllllllllllllllftt lrntltlll
                                    Of ..... Alllll Uh ....
     PlnlaltAnndllldsMcemdB(hm).:lllnftiCaYtdtciiA.dd!lpnCIIall1 •ndi!UeiiiiiiiOINtfMilDII.,.tt.llllu
     dlllllltllllllll lilly chllftl rii..,.A. tb!ldll. F«YIIIIII'IIIIto'ldlllll llnliVId.nDwlllllld hln. s-•*11•
     111rtbr... ., folllnm                                                                                  .
     'nltl!lllnlftiii.,.IOtllillfa .... lnlllldbrU..iuGf&.lth&AIImlllll~llllllldafUI!jlllftA.
     Qlllllqn.l ftiMI!IWlG, ad, IIIGGnlalnld~DaiiRDnp-antl styllf"Mo!U. dCcfii'QA V(Wiria
     Alllll DTDU/,_. flO Mlrllltl Cl8l* UIIIT~. Cnl br~~ lt'-14 aaderllll'lllllll                      l:lStt
     FHIIMIII S'clllllaa, IIIII alfllr lllllllrll:allnl Mac~ a-a~ lA t.he.,_.hm, -.,and
     .Nai!Giri iM!illtlhetlnla Gfdlllll llf Marlorll A.CN!dl, lh1 ~II-lUI be ciUiclldlnd dll!l1blllld a~

     1M ~SIGICIIUUCIMiliD be ...alllldlllrllld dlllllbutmI l l ' - Plm•IIIISURN Ola lllr,mand....,
     uamt 111111 dlllriiUiadllllllll!hlv toMcillt.
     llltlll..amewtwvolllaillltrllllent ~..,..,A. Cidltlt,lhe\""*"ofh.-.MtattodM                                       ate
     1111111 thlt'AIMIIIIM ll~at clatrllulld lD1Mhlll'tllllllftll .. clltldl:ll..llln equ.tpll1i.10 lbiiLIIYhlllt Wr/blltl
     t~~IIIUIIIIIar~wllbctllrUiaAAml!ldMI!IG11•A.Chlldl.

     ..................CIIf'/af\11111.-antlllllltll ttnaalplllv.fth lhllrorf&tlal eatullllllllltllcln
     ~~~--co!IIIIIM9nallalrument.



     ,_MIQIIIII
     4.'1D~DII... "hrlu

          ~.Lc;,yj,.;



     t.tcilll c:Nide
     ~ Btlldway, 111M 11ft Mtankr. Tau




                                                                                                                PMOOG1
                                                        EXHIBIT

                                              13

                                                               V0215~POl40q
