dissenting.
The majority opinion correctly states the issue here, whether the option was personal to G. D. Kincaid or whether it passed to the executor of his will. I also agree that the option by its terms is not ambiguous.
Implicit in the holding that the option was personal and did not pass to the Kin-caid estate is that if it was found that the option was not personal the Kincaid estate would prevail.
I view the option as a contract and as stated in Williston on Contracts, vol. 3, sec. 415, at p. 69:
A Contract of Option is Assignable. Some question has at times arisen as to the power of one who holds an option to assign his right to another. An option if given for consideration or under seal is a contract; and the right of the promisee might be supposed to be assignable as any other contractual right. But such an option is also an offer to enter into a further relation; namely, that of seller *36and buyer. And it is a general rule that an offer can be accepted only by the person to whom it is made. It seems reasonable where a contract right of value is concerned (an option often is of value) and where the performance of the offeree can be as effectively rendered by anyone as by him, that the rule applicable to revocable offers should not be pertinent. It is accordingly generally held that an irrevocable option (that is one which is a contract) can be enforced by an assignee. The rule is well stated in these words: In the absence of an express provision in a contract prohibiting it (an) option is assignable.
Also 6 Am.Jur.2d, Assignments, sec. 20, at p. 204:
The assignability of the right of the holder of an option is governed by the general principles which govern the as-signability of other contract rights. It is generally held that, in the absence of an express provision in an option agreement forbidding its assignment, the holder of the option may assign his right to a third person who may exercise the option, unless there is something in the circumstances, the subject matter, or the nature of the transaction which justifies the assumption that a particular trust or confidence was reposed in the optionee alone, or shows that the option was intended only to be open to acceptance by him personally.
See also Dahl v. Zabriskie, 249 Iowa 584, 88 N.W.2d 66 (1958), and Cochran v. Taylor, 273 N.Y. 172, 7 N.E.2d 89 (1937).
There is nothing in this option that shows any relationship or that particular trust or confidence was reposed in the optionee alone. In the absence of these circumstances being shown in the option, it can be assigned; and if it is assignable, I see no valid reason why it would not pass to the Kincaid estate.
The foreign cases relied upon in the majority opinion place emphasis on the fact that the option here did not recite to Kin-caid’s “heirs etc.” I do not attach any particular significance to this lack, therefore, I believe the option here was assignable and passed to the Kincaid estate.
I would reverse the opinion of the Court of Appeals and affirm the trial court. Accordingly I dissent.