Summary
holding a right of first refusal to repurchase property was not binding on a personal representative, because "[i]f the grantors had meant to bind her personal representative, her successors in title, or assigns (assuming they could), they should have said so" (footnote omitted)
Summary of this case from Kelly v. McCombsOpinion
Docket No. 11492.
Decided December 7, 1971.
Appeal from Monroe, William J. Weipert, J. Submitted Division 2 November 5, 1971, at Detroit. (Docket No. 11492.) Decided December 7, 1971.
Complaint by Herbert and Margaret Waterstradt against James A. Snyder, the executor of the estate of Olive M. Waterstradt, to restrain the sale of real property by Snyder and to enforce the plaintiffs' claimed right to purchase for a specified price. Summary judgment for plaintiffs. Defendant appeals. Summary judgment vacated and remanded for entry of summary judgment for defendant.
B.A. Simons and Erwin A. Salisbury, for plaintiffs.
Ready Ready, for defendant.
This case involves the interpretation of the following language in a deed:
"The grantee agrees that if she ever desires to sell the aforementioned property, the grantors herein are to have the right and option to buy the same for $9,000."
The grantee died testate. Her will was admitted to probate. It made six specific bequests of some articles of wearing apparel, a ring, a sum of Masses for her deceased husband, and $250 for each of her grandchildren and great-grandchildren. Then followed the usual residual disposition of the "remainder of my property of whatever kind not otherwise disposed of by this will" to the deceased's two daughters.
It is obvious that the realty here involved was not "otherwise disposed of by this will". It was included in the assets of the estate. A license to sell was authorized for $15,000. The grantors brought suit to restrain the sale and to enforce their claimed right to purchase the property for $9,000.
The trial court held the option binding on the defendant executor and granted summary judgment to plaintiff-appellees in the nature of an order requiring sale to grantors for $9,000.
To discuss this question in detail, citing the limitless encyclopedic authority both ways, and making a well-documented choice is tempting. We resist the temptation.
The language in the deed means just what it says, nothing more, nothing less. "If the grantee * * * ever desires to sell the * * * property, the grantors * * * have a right to buy the same for $9,000."
If she had desired to sell, she would have exercised her option to do so. Then the grantors could have exercised their option to buy it back at the specified price. She did not, so the grantors could not.
If the grantors had meant to bind her personal representative, her successors in title, or assigns (assuming they could), they should have said so. We decline to rewrite the language of the option. We make no distinction between "personal representative" and "successor" or "assigns". In logic, we could not do so. We hold the option to repurchase terminated on the death of the grantee because it required her personal volitional act in her lifetime. We cite with approval, as did the Supreme Court in Old Mission Peninsula School District, fn 1 supra, p 551, the general rule:
See Mr. Justice EDWARDS' language in Old Mission Peninsula School District v. French, 362 Mich. 546, 549 (1961).
"There is a strong tendency to construe an option or pre-emption to be limited to the lives of the parties, unless there is clear evidence of a contrary intent."
There was no clear evidence of contrary intent.
The summary judgment entered in the circuit court is vacated. The cause is remanded with instructions to enter summary judgment for defendant-appellant, who may tax costs.
All concurred.