## Facts

- A testator devised real property to her son, Fern Martin Forrest, “for so long as he lives upon the property,” with distribution “upon his removal from the property, or upon his death” to the children then living, share and share alike.
- The testator died in 1960; Fern took possession under the testamentary grant.
- In 1975, Fern sued his three living siblings for partition and requested sale and division of proceeds according to the parties’ interests.
- The siblings were willing to sell and divide proceeds equally four ways; Fern sought to receive first the actuarial value of his life estate, with the remainder divided among the four.
- The trial court found Fern had abandoned his life estate by maintaining the partition action and agreeing to sale, treating this as “removal” under the will.
- The property sold for $56,000 gross and $50,421.29 net; the court awarded each party $12,605.32, subject to fee-and-cost liens of $906.05, yielding $11,699.27 net each.
- Fern challenged the denial of a separate payout for his life estate and challenged the attorney’s fees and costs allocation; respondents argued the appeal was barred because Fern had accepted distributions.

## Issues

1. Whether filing and pursuing a partition sale constituted “removal” or abandonment that terminated a determinable life estate under the will, eliminating any right to actuarial compensation for that life estate from sale proceeds.
2. Whether acceptance of the monetary distributions under the judgment barred appellate review under the acceptance-of-benefits doctrine.
3. Whether the trial court abused its discretion in allocating attorney’s fees and costs in the partition action.

## Decision

- The Court of Appeal affirmed.
- By seeking and maintaining partition and agreeing to a sale converting the property to cash, Fern abandoned the determinable life estate and thereby effected the “removal” condition that terminated it.
- Because the life estate was terminated by Fern’s conduct, he was not entitled to a separate award for its actuarial value; equal division of net proceeds among the four siblings was proper.
- Fern’s receipt of the amounts awarded did not bar the appeal where he sought additional sums beyond what he received.
- The trial court’s attorney’s fee and cost awards, including equal fee awards to counsel and proportionate liens against each share, were upheld as a proper exercise of discretion in partition.

## Legal Principles

- A testamentary grant “for so long as” a beneficiary lives on property can create a determinable life estate that ends upon a specified condition (such as removal), with remainder interests vesting upon that condition.
- A life tenant’s election to pursue a partition sale and conversion of the property into proceeds may be treated as abandonment of the possessory estate and as satisfaction of a will condition terminating the life estate.
- An appellant is not necessarily barred by acceptance of judgment benefits when the appeal seeks additional recovery and does not repudiate the underlying judgment relief.
- In partition, allocation of attorney’s fees and costs among parties benefitted by the action is committed to the trial court’s discretion and will be reversed only for abuse.

## Conclusion

The court held that the life tenant’s pursuit of partition and agreement to a sale terminated a determinable life estate under the will, so he could not claim an additional actuarial buyout from the proceeds; the equal distribution and the trial court’s fee-and-cost allocations were affirmed, and the appeal was not barred by acceptance of the awarded sums.


Forrest v. Elam, 88 Cal. App. 3d 164 (Ct. App. 1979)