Iglehart v. Jenifer

• Decision Date: 07 April 1977
• Docket Number: No. 591,591
• Citation: 371 A.2d 453,35 Md.App. 450
• Parties: ., et al. Court of Special Appeals of Maryland
• Court: Court of Special Appeals of Maryland

Page 450

35 Md.App. 450

371 A.2d 453

Joseph A. W. IGLEHART v. H. Courtenay JENIFER, Jr., et al.

No. 591.

Court of Special Appeals of Maryland.

April 7, 1977.

Certiorari Denied June 29, 1977.

Francis N. Iglehart, Jr., Towson, for appellant.

E. Harrison Stone, with whom were Royston, Mueller & McLean, Towson, James J. Dawson and Cable, McDaniel, Bowie & Bond and Charles A. Velte, Baltimore, on the brief, for appellees.

Argued before THOMPSON, DAVIDSON and MASON, JJ.

THOMPSON, Judge.

This is an appeal from a decree passed by Judge Walter R. Haile sitting in the Circuit Court for Baltimore County, sustaining the appellee's demurrer and dismissing the appellant's bill of complaint. The sole question presented is did the appellant's right of first refusal to purchase certain real estate terminate upon the death of the optionor. ¹

In his bill of complaint Joseph A. W. Iglehart, the appellant, alleged the following: (1) on July 30, 1968, he and the late Ilma M. Jenifer entered into an agreement by which she granted unto Iglehart the right of first refusal or option to purchase her property upon receipt of an acceptable offer to purchase the same from any other person; (2) the said Ilma M. Jenifer died on October 28, 1975, and that the appellees, H. Courtenay Jenifer, Jr. and Clinton T. Pitts were issued letters as personal representatives of her estate; (3) the personal representatives of her estate listed the Jenifer property with the appellee Piper and Co., Inc., as a result of which Iglehart made an offer to purchase the property; and (4) the personal representatives accepted the offer of 'The Lamb of God,' a Maryland corporation, for the price of $260,000.00 without affording appellant an opportunity to match said price under the option agreement and that appellant was ready to match the offer of the price established by the contract with 'The Lamb of God.' After other allegations, not here relevant, the bill prayed the court determine the validity and effect of the option. The option agreement was attached to the bill of complaint and in relevant part provided as follows:

'ILMA M. JENIFER, party of the first part, hereby gives and grants unto JOSEPH A. W. IGLEHART, party of the second part, his heirs and assigns, the irrevocable right, privilege and option to purchase the premises described hereinbelow when the said party of the first part receives a firm offer to purchase the said premises by another party, acceptable to the party of the first part, and such right, privilege and option to purchase the said premises shall be for the same price and on the same terms as the said firm offer to purchase by another party.'

We hold, as did the trial judge, that the agreement terminated upon the death of Mrs. Jenifer. In that agreement the parties were very careful to use the words, 'heirs and assigns' when referring to the optionee. They were just as careful to eliminate those words when referring to the optionor. The phrase, 'heirs and assigns', as used in this agreement is a legal term with a technical meaning. Ensor v. Wehland, supra 243 Md. at 491, 221 A.2d 699. It is obvious that where the parties intended that the rights were to pass to the personal representatives, the relevant phrase was included, and where they intended the obligation to be personal and to cease upon the death of the optionor, it was omitted.

Appellant argues that the inclusion of the phrase, 'heirs and assigns' when referring to the optionor might have violated the rule against perpetuities and we agree. See Commonwealth Realty Corporation v. Bowers,261 Md. 285, 274 A.2d 353 (1971). That does not mean, however, that had the parties so intended, an agreement could not have been drawn which neither violated the rule against perpetuities nor terminated at the death of the optionor. See, for example, Petersen v. Olson, 253 Iowa 469, 112 N.W.2d 874 (1962), where the parties executed a twenty-year option without making reference to the heirs and assigns of the optionor. The Iowa Court held that plain intent was shown by the establishment of a definite time limit within which the optionee could purchase the land and thus, the death of the optionor would not terminate the agreement.

In Ensor v. Wehland, supra, the Court of Appeals considered an agreement very similar to the one at bar. The Court held that the contract bound the optionor, not her heirs or personal representatives, and the option terminated at her death so long as she had not made the decision to sell during her lifetime. The appellant argues at some length that the agreement in Ensor v. Wehland, supra, required the optionor to make a personal decision to sell before the optionee could purchase, and no such personal decision was required in the case at bar. We are unable to see the distinction. It appears to us that the...