Cunningham v. Frymire

SCHOTTKY, J.

This is an appeal from a judgment ordering partition by sale of certain real property. The property in question was all part of the estate of Samuel Jones who died in 1938. By the terms of his will his daughter Celia H. Frymire and his son Benjamin C. Jones were each devised a one-third interest in the property, and his daughter Ruby Cunningham was devised a one-third interest in trust. During probate Celia H. Frymire died, and her husband, Goldsmith Frymire, succeeded to her interest. Prior to the distribution of the estate Goldsmith Frymire created by deed a life estate in himself in his share of the property, with a remainder over in favor of Patrick Cunningham and Dennis Cunningham, sons of Ruby Cunningham, and Cecelia Gwendolyn Jones and Charlotte Orlena Dunlavy, daughters of Benjamin C. J ones. By the decree of distribution dated November 12, 1952, Ruby Cunningham received her one-third interest free of the trust, Benjamin C. Jones received his one-third interest and Goldsmith Frymire was given a life estate in the remaining one-

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third with remainder over to the above named sons of Ruby Cunningham and the daughters of Benjamin C. Jones.

In 1954 Ruby Cunningham and her sons, Patrick Cunningham and Dennis Cunningham, commenced this action to compel the partition of the real property. Partition was opposed by Benjamin C. Jones and his daughters and by Goldsmith Frymire. Myrtle J. Elliott did not oppose partition. The Riehmond-Martinez Abstract and Title Company disclaimed any interest in the property. Goldsmith Frymire filed a cross-complaint in which he alleged that the life estate in his share of the property was created gratuitously on the condition that he would have and receive for his support and maintenance one-third of the income received from the property for life; that he should have full possession and use of the property during his life; that the title of the remaindermen was conditional on the fulfillment of the conditions; that the deed was accepted by the remaindermen subject to these conditions; and that the Cunningham boys had violated the conditions by seeking partition. He asked that the court enter a decree impressing a trust in his favor upon the interest claimed by the Cunningham boys.

The cause proceeded to trial. The evidence produced disclosed that the property in question consisted of four parcels of land: