Central Bank & Trust Co. v. Kincaid

617 S.W.2d 32
CourtKentucky Supreme Court
DecidedJuly 7, 1981
StatusPublished
Cited by41 cases

This text of 617 S.W.2d 32 (Central Bank & Trust Co. v. Kincaid) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Central Bank & Trust Co. v. Kincaid, 617 S.W.2d 32 (Ky. 1981).

Opinions

STERNBERG, Justice.

This is an action to construe a unilateral option contract. In June of 1973 (the exact date is not shown by the record), Joan Kin-caid granted an option to G. D. Kincaid for the privilege of purchasing 90,760 shares of stock owned by her in the Lexington Finance Company, for which she had paid $196,424.25. The option is not lengthy, so we copy it in full, to-wit:

“For and in consideration of One Dollar ($1.00) cash in hand paid, and other good and sufficient valuable consideration, the receipt of which is hereby acknowledged, I, Joan D. Kincaid, do hereby give, sell; assign, and transfer unto G. D. Kincaid, an irrevocable exclusive option, for a period of five (5) years from the date hereof, to purchase all of the shares of stock I own of Lexington Finance Company for a consideration of Two Dollars ($2.00) per share, and the said G. D. Kincaid may exercise this exclusive irrevocable option at his sole discretion at any time within the said five (5) years from the date hereof by paying for said stock the price of Two Dollars ($2.00) per share to me or my duly authorized representative, administrator or executor, and I do further covenant that I will neither sell nor further encumber said stock during the term of this option.
IN TESTIMONY WHEREOF, witness my hand this_day of June, 1973.”

On November 21,1975, G. D. Kincaid died testate without exercising his right of pur[33]*33chase. However, the executor of his will, Central Bank & Trust Company, sought to exercise the option and to that end tendered Joan the sum of $181,520. The offer was refused, and on June 19, 1977, Joan filed a suit in the Fayette Circuit Court demanding that the option be declared null and void and of no effect. The executor was made a party defendant, and in its response it demanded that the trial judge not only declare the ownership of the stock but that Joan be required to accept the tendered offer as full payment for said stock. The issue was submitted to the trial court on the executor’s motion for summary judgment. The motion was granted and the option was declared to be valid and enforceable by the executor. On appeal to the Court of Appeals of Kentucky, the judgment of the trial court was reversed. On October 28, 1980, this court granted review.

The deciding issue which this court gleans from the record and the briefs of the parties is whether the right to purchase the shares of stock was personal to G. D. Kin-caid or whether it passed to the executor of his will.

First of all we need to determine whether the terms of the option are ambiguous. If they are, then extrinsic evidence may be resorted to in an effort to determine the intention of the parties; if not, then extrinsic evidence may not be resorted to. The criterion in determining the intention of the parties is not what did the parties mean to say, but rather the criterion is what did the parties mean by what they said. An ambiguous contract is one capable of more than one different, reasonable interpretation. The right to contract is a valuable right limited only by constitutional or statutory provisions, public policy, or the desires of the parties. In our effort to determine whether the terms of the option are ambiguous, we have challenged the intention of the parties by every expression and statement contained within the four corners of the instrument. As we do this, any doubt that may have come forth in each instant fades like ectoplasmic vapor when exposed to the light of the option as a complete instrument.

We are of the opinion that the option is not ambiguous.

Is the right to purchase the shares of stock personal to G. D. Kincaid? An option has long been recognized not as a sale but as a right to exercise a privilege. Three Rivers Rock Co. v. Reed Crushed Stone, Ky., 530 S.W.2d 202 (1975).

At the outset we note that there is a five-year restraint on the sale or alienation of the stock to anyone other than G. D. Kincaid. The common-law rule against restraint on alienation was designed to prevent the taking from the owner of the power to alienate property and is not favored in law. Three Rivers Rock Co. v. Reed Crushed Stone, supra. This court has long recognized that the right to purchase, irrespective of the use of words of descent or of alienation, may, where the intent of the parties is so manifest, pass to and be exercised by the heirs, administrator, executor or committee of the optionee. Three Rivers Rock Co. v. Reed Crushed Stone, supra; 91 C. J. S. Vendor and Purchaser, Sec. 14.

The option neither states the right of purchase is or is not personal to the optionee, nor does it state that the optionee and he alone possesses the right of purchase. The terms of the option (1) prohibit Joan from selling or encumbering the stock during the term of the option (five years); (2) provide that the purchase price may be paid to Joan or to her executor, administrator or representative; (3) name G. D. Kin-caid and he alone as the optionee; (4) provide that “G. D. Kincaid may exercise this ... option;” and (5) state that the exercise of the option is at the sole discretion of G. D. Kincaid. The option does not provide that the privilege of purchasing the stock is to G. D. Kincaid or his executor, administrator, committee or assigns. It is significant to note that the power to exercise the option did not include or describe any source other than G. D. Kincaid, to-wit: his executor, administrator, committee or assigns. Had the parties desired the option to be [34]*34exercisable by anyone other than G. D. Kin-caid, the necessary descriptive designation could easily have been made.

Counsel for respondent has called this court’s attention to the case of In re Estate of Sifferman, Mo.App., 603 S.W.2d 30 (1980). Although this case is not on all fours with the subject action, it does present similar questions. Therein, Tom Sifferman owned 200 acres of land. He and his son Ray contracted for Ray to purchase 160 of the 200 acres, with an option to purchase the remaining 40 acres during Tom’s lifetime should Tom decide to sell or within one year after Tom’s death for the sum of $5,000. The agreement made the option to purchase the 40 acres binding on the heirs, administrators, executors or legal representatives of the owner (optionor), but it was silent as to whether it could be assigned or devised by the optionee or inherited by his heirs in the event the op-tionee predeceased the owner. The op-tionee did predecease the owner, his father. After the death of the optionee, his wife attempted to assign any and all rights that she had in the agreement to Bob Sifferman, son of the optionee. Bob filed suit to enforce the terms of the option contending that the right of purchase was not personal but survived the death- of the optionee. The trial court held to the contrary. The Missouri Court of Appeals said:

“... It has been held that if the option contract does not specifically provide that it is binding on the heirs and assigns of the parties, and does not indicate that the agreement is binding beyond the lifetime of the parties to the agreement, such an agreement is a personal one which does not extend beyond the respective lives of the parties....
In applying the law of these cases to the facts here, it is evident that the option purchase agreement in question was personal to Ray.

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Bluebook (online)
617 S.W.2d 32, Counsel Stack Legal Research, https://law.counselstack.com/opinion/central-bank-trust-co-v-kincaid-ky-1981.