To the extent the case suggests some classes but not others were inalienable, its reasoning is internally inconsistent. Moreover, Jerman cites Love v. Lindstedt for the proposition that even if a contingent remainder is not alienable, it is vendible — a proposition that has no bearing on Charles' will. Even if the court's decision several years after Charles death clarified, in dictum, the state of the law, see Hawkins Roberts v. Jerman, 147 Or. 657, 664-65, 35 P.2d 248 (1934), that subsequent clarification is not relevant to what Charles reasonably would have understood when he executed his will. We accordingly agree with the trial court that Charles did not give Saidee a power of appointment over the contingent remainder to be exercised in her last will and testament.
We believe it inadvisable to further define or explain them and are content to conclude the remainder limited to the "heirs of Frank Carey" was a contingent future interest as there was an uncertainty as to the person or persons who would be entitled to enjoy the remainder, and since the uncertainty at the time of the creation of the contingent remainder continued to exist until the death of the life tenant, it did not and could not vest until his death, because he could have no heirs prior to his death. See also, Hawkins Roberts v. Jerman, 147 Or. 657, 35 P.2d 248; Roberts, J. dissenting in Tillotson v. Carpenter, 61 S.D. 570, 576, 250 N.W. 339, 341, and cases and annotations in 131 A.L.R. 712; 144 A.L.R. 763; 19 A.L.R.2d 371 and 65 A.L.R.2d 1400. In Burton v. Kinney, 191 Tenn. 1, 231 S.W.2d 356, 19 A.L.R.2d 366, the court distinguishes remainders to the heirs of testator and the life tenant, declaring the former as vested, the latter as contingent.
If a grantee pay on the principal as well as on the interest due on the mortgage, it would not indicate he had assumed and agreed to pay the debt. Such payments would indicate a desire to keep the lands as long as possible. International Mortgage Bank v. Hachez, 92 Wn. 180, 158 P. 991; Hawkins Roberts, Inc. v. Jerman, 147 Or. 657, 35 P.2d 248; Citizens' Bank of Springfield v. Thomas, 214 Mo. App. 581, 264 S.W. 86. The conveyance by Davis and wife to Bridges, Jr., and Sutter, although it contains an assumption clause against the grantees, does not prove that Davis had ever agreed to pay the mortgage debt.
In fact, the latest that the ROFR could vest was immediately prior to the death of the last of the original signatories to the ROFR agreement, as that was the last point in time at which the condition precedent could be met. See Tamura v. Deluliis, 203 Or. 619, 626, 281 P.2d 469 (1955) (recognizing that a right of first refusal may be exercised only after the condition precedent is satisfied); Hawkins & Roberts v. Jerman, 147 Or. 657, 663-64, 35 P.2d 248 (1934) (recognizing, in discussing remainders, that a contingent interest in real property vests upon the satisfaction of the condition precedent). The ROFR agreement does not violate the rule against perpetuities.
" In support of that reasoning, plaintiff cites Hawkins Roberts v. Jerman, 147 Or 657, 665-67, 35 P2d 248 (1934), for the "fundamental maxim" that a "landowner cannot convey a greater estate than that which it possesses." The problem with plaintiff's argument is that it confuses property rights with municipal authority to exercise governmental regulatory power.
Wright v. Kroeger, 219 Or. 102, 107, 345 P.2d 809 (1959). However, the future interests of Delbert's children, if any, flow directly from their grandfather Ernest's will, not Delbert's. Hawkins Roberts v. Jerman, 147 Or. 657, 660-61, 35 P.2d 248 (1934). Their interests stem only from their membership in a class described as "lineal descendants."
We agree that plaintiff's evidence was sufficient to demonstrate the existence of a factual question about undue influence. Plaintiff does not challenge the correctness of that conclusion, and it is not an issue on appeal. However, we imply no agreement with the conclusion, which was based on the Rule in Shelley's Case. See 1 Co. Rep. 93b, 104a (1579-1581); see also ORS 112.345; Hawkins Roberts v. Jerman, 147 Or. 657, 35 P.2d 248 (1934); O'Connell, "The Rule in Shelley's Case in Oregon," 20 Or L Rev 103 (1941). Windsor argues that, as originally pleaded and formulated, plaintiff's argument was that he had rights in the property as a remainderman, which ripened automatically upon the life tenant's death.
The court held that if payment is postponed for no reason personal to or in the interest of the legatee, but solely for the benefit of the widow's life estate, the remainder is vested. [5, 6.] Hawkins Roberts v. Jerman, 147 Or. 657, 35 P.2d 248 (1934), contains an example of a clearly contingent remainder. After the death of the testator's widow (to whom a life estate was granted), there was a remainder over to the daughter, Lela Jerman, to be held and enjoyed in the period of her natural life "and upon her death, to descend to the heirs of her body only."