## Facts

- Ernest Webb died testate in 1972 owning real property known as the Buck Hollow Ranch.
- Ernest’s will gave his wife, Agnes Webb, all of his property “for her use, benefit and enjoyment” for the period of her natural life so long as she remained unmarried; the life estate would end if Agnes remarried.
- The will directed that upon Agnes’s remarriage, the property would be distributed by giving $1 each to two of Ernest’s children (Irene Barton and Vivian Morse) and dividing the remainder equally among four other children: Delbert Webb, Delores Rhodig, La Velle Underhill, and Wayne L. Webb.
- The will provided that if one or more of those four children was dead at the time of distribution, that child’s share would go to the child’s lineal descendants; if a deceased child left no lineal descendants, that share would go to the survivors of the four (or their lineal descendants).
- The will repeated the same remainder plan for distribution at Agnes’s death if she had not remarried: $1 each to Irene and Vivian, and the remainder equally among Delbert, Delores, La Velle, and Wayne, with substitution to lineal descendants if a child was dead at distribution.
- After Ernest’s death, Delbert died, leaving his wife, Carol, and three children (Ernest’s grandchildren through Delbert).
- Carol occupied part of the ranch as a tenant.
- Agnes, Wayne, Delores, Carol, and the grandchildren filed an action under Oregon’s partition statute (ORS 105.205) seeking partition and sale of the ranch and distribution of proceeds.
- La Velle Underhill opposed partition, arguing that the remainder interests were contingent because the takers could not be determined until Agnes’s death or remarriage.
- The trial court granted summary judgment for Underhill and dismissed the partition action, concluding that no party held a vested interest; plaintiffs appealed.

## Issues

1. Whether the future interests created by Ernest Webb’s will in favor of the four named children and their lineal descendants were vested remainders or alternative contingent remainders dependent on survival to the termination of Agnes’s life estate.
2. Whether the vested-versus-contingent classification of those future interests was a question of law that could be resolved on summary judgment by construing the will.
3. Whether, if the remainders were contingent, the plaintiffs could compel partition and sale of the ranch before Agnes died or remarried.

## Decision

- The Oregon Court of Appeals affirmed the summary judgment for La Velle Underhill.
- The court held that the controlling question—whether the remainder interests were contingent or vested—was a legal issue of will construction suitable for summary judgment.
- The court concluded that the will created alternative contingent remainders because the identity of the takers depended on who was alive (or had qualifying lineal descendants) when Agnes’s life estate ended by death or remarriage.
- Because the takers and their shares could not be fixed until that terminating event occurred, the plaintiffs lacked a vested, partitionable interest and could not force partition and sale at that time.

## Legal Principles

- When the dispute turns on construing a will and classifying future interests, and there are no material fact disputes, the classification of the interests is a question of law that may be decided on summary judgment.
- A remainder is contingent when the person or persons who will take cannot be ascertained until the occurrence of a future event, including when survival to the termination of a prior life estate is a condition of taking.
- A devise that directs distribution at the life tenant’s death or remarriage and provides substitute takers if a named remainderman is then dead (descendants, then surviving siblings and their descendants) indicates that the gift is to whoever qualifies at the time of distribution, not a fixed vested share at the testator’s death.
- When future interests are alternative contingent remainders and the membership of substitute takers (such as “lineal descendants”) may change until the life estate ends, the interests are not sufficiently settled to support forced partition and sale before the terminating event.

## Conclusion

In *Webb v. Underhill*, the Oregon Court of Appeals held that Ernest Webb’s will conditioned the remainder on who survived (or left qualifying lineal descendants) when Agnes Webb’s determinable life estate ended by death or remarriage, creating alternative contingent remainders; because no party held a vested remainder before that event, partition and sale under ORS 105.205 were properly dismissed on summary judgment.


Webb v. Underhill, 882 P.2d 127, 130 Or.App. 352 (1994)