concurring: I concur in our ultimate destination: affirming the district court’s summaiy judgment rulings. However, I would take a somewhat different path to get there.
The seed of this dispute is the only slightly murky language of the right of first refusal. Rather than containing the more commonly drafted provision that the grantor of the right will not sell the property to a third party without first offering the property to die grantee of the right on the same terms and conditions as the grantor is willing to accept from the third party, this right of first refusal simply provides:
“Richardson will not sell, transfer or convey [the property] to any third party without first offering the same to [the] Bergman[s] ... on the same terms and conditions as any bona fide written offer which Richardson has received for the purchase of such property.”
The Bergmans argue that this provision on its face does not condition the exercise of the right on the acceptability to the grantor of a third party’s offer. The majority’s analysis seems to accept that diere is a void in the terms of the grant and fills tiiat void with a condition implied in fact. I do not think such an analysis is necessaiy.
The Bergmans’ interpretation is, of course, contrary to the fundamental concept of a preemptive right or right of first refusal. They ignore the opening phrase of die grant: “Richardson will not *309sell ... to any third party . . . .” The fact that this right of first refusal can be exercised to preempt a sale to a third party makes it clear that the terms of the third party’s offer must be acceptable to the grantor, otherwise no such anticipated sale would occur. Further, the very next sentence of the document provides:
“N otification of an impending sale and the availability of the right of first refusal which either party has granted to the other shall be made, implemented and exercised according to the following terms and conditions.”
Obviously, the reference to “an impending sale” makes it clear that the offer of the third party must be one that the grantor was willing to accept. Without such a willingness, there would be no impending sale. Thus, it seems to me that the case turns on a simple, straight-forward construction of the grant without the need to imply any additional terms.
Applying this construction of the right of first refusal to the facts at hand, the offers to purchase from Bergman and Smith clearly do not trigger the preemptive right. Aside from the obviously ill-conceived and transparent bootstrap maneuver of Bergman in his attempt to trigger his preemptive right by his own purchase offer, I do not question whether these were bona fide offers in tire sense that I do not doubt that the offerors were willing to come to the closing with certified funds in hand. Nevertheless, the simple fact is that neither the Bergman offer nor the Smith offer was acceptable to Commerce.
Finally, the majority upholds Commerce’s conveyance to Mary Richardson by concluding that there was no written offer and, thus, no willingness of Commerce to accept an offer. I would hold otherwise.
Crispan Richardson was single and had no children. His natural heirs were his sisters, Mary Bradley and Mary Richardson. Shortly before his death, he executed a will that left his tangible personal property to his friend, Christa Park, and transferred the remainder of his property to a newly created inter vivos trust for Park’s benefit. Crispan’s sisters were left nothing under the will and trust. Mary Richardson challenged her late brother’s mental capacity and his freedom from undue influence at the time he executed the will *310and trust agreement. She objected to the admission of the will to probate and filed suit to set aside the trust. After various negotiations, Commerce, as special administrator of the estate and trustee of the trust, entered into a valid settlement agreement pursuant to which Mary Richardson received the real estate that was subject to the right of first refusal. In consideration, she withdrew her challenge to her brother s will and agreed to dismiss her suit attacking the trust.
The valid settlement agreement memorializes in writing the product of the negotiations between Mary Richardson and Commerce that led to the conveyance of the land to her. That conveyance was based upon consideration that only Mary Richardson could supply. By its very terms, the valid settlement agreement was based upon terms that the Bergmans could not possibly meet. Only Mary Richardson could release her claims against the admission of her brother s will to probate and voluntarily dismiss her suit challenging the trust. Under these circumstances, any tender to the Bergmans of Mary Richardson’s offer to Commerce would have been a futile gesture. The law does not require a person to do a futile act. See Garrison v. Berryman, 225 Kan. 644, 648, 594 P.2d 159 (1979); Furst v. Buss, 104 Kan. 245, 248, 178 Pac. 411 (1919). Commerce’s conveyance to Mary Richardson was proper, though the property now in her hands remains subject to the Bergmans’ right of first refusal should she elect to sell the property before expiration of the right of first refusal.