Future Interests – Validity of Shifting Executory Interest on Event Certain to Occur

Testator’s will provided for alternative devises of his business real estate. If employees of the business exercised an option granted by the will to purchase his partnership interest within eight months after his death, the real estate was to pass to a bank in trust for his daughter and her children. If the option was not exercised within this period, the real estate was to pass to his widow. A residuary clause divided the remainder of his estate equally between his widow, absolutely, and the named bank as trustee. After passage of the eight-month period, testator’s daughter sought a declaration that she was owner in fee of the land in question. She asserted that, as testator’s sole heir at law, the real estate passed to her as intestate property during the eight-month interim. Since performance of the conditions relating to the exercise of the option had been rendered impossible through actions by the widow, neither of the alternative devises in the will could take effect and title consequently remained in her absolutely. The probate department of the Circuit Court of Multnomah County rejected the daughter’s contention and determined that title to the property had now vested in the widow. On appeal, held, affirmed. The land did not pass temporarily as intestate property, but passed under the residuary clause as a fee simple defeasible subject to alternative executory devises, one of which was certain to take effect at the end of the eight-month period. Title was to pass absolutely to the widow if for any reason the option was not exercised by the employees, even though one of the reasons was impossibility of performance. Estate of Palmer, (Ore. 1957) 315 P. (2d) 164.