ON MOTION FOR REHEARING
In her motion for rehearing, Mrs. Rappe-port contends, among other things, that we erred in reversing that portion of the judgment which awarded her attorney’s fees. She argues that the award was proper under Tex.PROB.Code Ann. § 149C(c) (Vernon 1980), and alternatively that Mrs. Lesikar did not raise on appeal any contention that the award was improper.
Section 149C(c) of the Texas Probate Code provides that:
An independent executor who defends an action for his removal in good faith, whether successful or not, shall be allowed out of the estate his necessary expenses and disbursements, including reasonable attorney’s fees, in the removal proceedings.
(Emphasis added.)
The trial court, in accordance with the jury findings, found that Mrs. Rappeport had defended in good faith the action to remove her as an independent executrix, and that she did not breach her fiduciary duty to the other beneficiaries of the estate. Thus, whether she was successful or not on the appeal, she would be entitled to attorney’s fees pursuant to Section 149C(c).
Mrs. Rappeport originally pleaded for attorney’s fees under the Declaratory Judgment Act, but not under Probate Code, Section 149C(c). She did file a trial amendment seeking attorney’s fees under Section 149C(c), but it purported to amend her third answer and counterclaim rather than her fourth answer and counterclaim, on which she actually went to trial. The following colloquy occurred when Mrs. Rappeport requested leave to file her trial amendment.
THE COURT: This is different. I’m telling you that in a suit of this kind it’s no surprise to anybody. It’s nothing that you would have to change tactics about. They're in the statute, 149C, and if you’re successful in removing this executrix, I’m going to award you attorney’s fees; otherwise, I am not. If she is successful in defending this charge and is not removed, then I’m going to award her attorney’s fees, reasonable and necessary attorney’s fees. Nobody in this room is surprised by that. You couldn’t have ever read 149C and be surprised by that. So, if it requires somebody to sit down right and on a yellow legal pad to write out whatever pleading is necessary to accomplish that, do it-right now so that there can be no objection to the — to evidence about attorney’s fees on the basis of pleadings. Now, is that necessary, Mr. Ross?
MR. ROSS: It’s not necessary, if the Court will just allow me to make a running objection, but if you’re going to allow a trial amendment or something like that—
THE COURT: Technically, you would be correct. If it weren’t written out right now and filed right, you would technically be correct that this is not supported by the pleadings, and I don’t want that technicality in my record. That’s why we’re going to take thirty minutes and let somebody write it out. Then you can make your objection if you want to.
Nobody should be surprised in any way about what 149C says about attorneys (sic) fees and I will allow it. Does anybody wish to have a trial amendment?
MR. HARRIS: Yes, Your Honor, Defendant, Jenny Rappeport, moves for a trial amendment.
*253THE COURT: All right. Would you draft your amendment and hand it to the clerk for filing.
All right. Has the amended pleading been filed?
MR. HOWARD: It is in the process of being filed at this time, and the amendment is reflected by the yellow sheet contained within the copy.
MR. ROSS: Is that what it is? Is this the only thing you’re filing?
MR. HOWARD: There is another paragraph regarding attorney’s fees pursuant to the declaratory judgment on the condition that it’s—
THE REPORTER: I can’t hear you.
MR. HOWARD: The answer in line with the Court’s ruling to allow attorney’s fees, specifically under Section 149C of the Probate Code.
The purpose of pleadings in our system is to give fair notice that a claim is being made. Certainly, notice was afforded in this instance, as the court and all parties were fully apprised that Mrs. Rappeport was seeking attorney’s fees under Section 149C(c), and she was granted permission to amend her pleadings to expressly so state. The fact that her trial amendment was ineffective as it was actually filed does not change the fact that the issue was tried with notice and by consent. Thus, formal pleading of the matter was unnecessary. Tex.R.Civ.P. 67; see also Jess v. Libson, 742 S.W.2d 90 (Tex.App.—Austin 1987, no writ); McClendon v. Farmers Texas County Mutual Ins. Co., 682 S.W.2d 722 (Tex.App.—Fort Worth 1985, no writ).
Mrs. Rappeport also complains because we taxed all costs on appeal to her individually. In this she is partly correct. As a co-independent executrix defending an action involving benefits to the estate, she is entitled to have her costs paid by the estate. Tex.PROB.Code Ann. § 149C(c); 29 Tex.JuR.3d Decedents’ Estates § 570 (1983), and cases there cited. Her argument that at least part of the costs should be assessed against Mrs. Lesikar is overruled. As the issues on appeal were principally decided in favor of Mrs. Lesikar, we con-elude that no part of the costs on appeal should be taxed against her. See Tex.R. App.P. 89.
For the reasons stated, the motion for rehearing is granted in part, so that the portion of the judgment below awarding attorney’s fees to Mrs. Rappeport is affirmed. In all other respects, the judgment is reversed and the cause is remanded to the district court to order a partial distribution of such portions of the estate that should not be subject to further administration by the independent executrices, as provided by Tex.PROb.Code Ann. § 149B (Vernon 1980 & Supp.1991), and to retry the issue of Mrs. Lesikar’s attorney’s fees. Costs on appeal are taxed against Mrs. Rappeport in her capacity as co-independent executrix of the estate.