Case Summary
| Citation | Rosher v. Rosher(1884) 26 Ch. D. 801 |
| Keywords | sec 10 TPA, absolute restraint, joint property, will, conditions |
| Facts | A person J B Rosher died leaving behind his wife and a son . He left his entire property to Son, under his Will. The Will also provided that if Son wanted to sell the property, or if any of his heirs wanted to do so, they must offer it to Widow first at 3600£ and she would have an option to purchase it at one- fifth of the value of the same, as it was assessed at the time of the testator’s death. The Will further provided that if the son or any of his heirs wanted to let this manor on rent, they could do so freely only for a period of three years. If the tenancy exceeded the three years time period, Widow would have the option to occupy the premises, for the period in excess of three years, at a fixed rent. The rent was fixed as 25 for the whole year. The son or his heirs were under an obligation therefore to offer the premises to W first, and only when she declined to take it, could they let it out to other persons. Widow filed a suit against her son. |
| Issues | What was the nature of the conditions incorporated under the Will; and whether it constituted an absolute or partial restraint on the power of alienation of this property? |
| Contentions | |
| Law Points | The character of restraint was: → First, if Son wanted to sell the property, he had to first offer it to Widow, a person specifically named under the Will. → Second type of restraint was with respect to money or price, as it was provided in the Will, that Widow could purchase the property at a specific price, i.e., 3600, irrespective of whatever might have been its market value. → Third, the beneficiaries, under the Will, were not free to even give it on lease, as a lease for above the time period of three years, could again entitle Widow to take the property at a very small rent, at her option. The court held that these restrictions amounted to an absolute restraint on Son’s and his heir’s power of alienation and were therefore void. They were entitled to ignore them, as if these conditions did not exist on paper, and could sell it or let it out to anyone for any time period, without any cause of action arising in favour of Widow. The court said, ‘to compel the son, if he chose to sell, at one fifth of the value of the estate, is really a prohibition of alienation during the widow’s life time’. Any restriction which substantially takes away the power of alienation, is void as being repugnant to the very conception of ownership. A partial restraint which does not deprive the owner of his power of alienation, is valid. |
| Judgement | It was concluded that any condition which restraints further transfer absolutely, is null and void. |
| Ratio Decidendi & Case Authority | Section 10 of TPA: Condition Restraining AlienationWhere property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him: provided that property may be transferred to or for the benefit of a women (not being a Hindu, Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein. |
Full Case Details
J.B. Rosher, by his will, dated the 26th of November, 1872, devised as follows:
“I devise all my manor, commonly called Trewyn Manor, and all other my real estate,
unto my said son Jeremiah Lilburn Rosher, his heirs, executors, administrators and assigns,
according to the tenure there of respectively, provided always, and I hereby declare that if my
said son, or his heirs’ or devisees, or any person claiming through or under him or them shall
desire to sell my manor and estate of Trewyn, and other my estates in the countries of
Monmouth and Hereford or any part or parts thereof, in the life time of my wife, she shall
have the option to purchase the same at the price of £ 3600 for the whole, and at a
proportionate price for any part or parts thereof, and the same shall accordingly be first
offered to her at such price or proportionate price or prices. And I also declare that if my said
son, his heirs or devisees,or any person claiming through or under him or them shall during
the life of my said wife desire to let Trewyn House, garden buildings, land and premises, or
any part or parts thereof, now in my occupation, for a longer period than three years at any
one time, she shall have the option of renting the whole of the lastly described premises for
any period exceeding three years as she shall desire, at the yearly rent of £ 25, and the same
shall be first offered to her accordingly ; and that if my said son, his heirs or devisees, or any
person claiming through or under him or them shall during the life of my said wife desire to
let Lower Trewyn or part or any parts thereof for a longer period exceeding seven years she
shall have the option of renting it for any period exceeding seven years as she shall desire, at
the yearly rent of £ 35, and the same shall be first offered to her accordingly.
The testator died on the 26th of November, 1874. This action was brought by the widow against the
son. The special case was stated by consent for the opinion of the Court, pursuant to Order XXXIV of
the Rules of Court of 1875.
The case stated that the real selling value of the manor and estate of Trewym, and other estates of
the testator in the country of Manmouth and Hereford, was at the date of the will and at the time of the
testator death, £ 15,000 and upwards; that the real letting value of Trewyn House garden buildings,
land, and premises, was, at the date of the will and at the time of thestator’s death, £ 100 and upwards
per annum; and that the real letting value of Lower Trewyn was at the date of the will and at the time
of the testator’s death £ 100 and upwards per annum.
The questions for the opinion of the court were:
(1) Whether or not, according to the true construction of the will, the son was entitled to
sell or to mortgage or charge respectively the estates devised to him by the will, or any part
thereof, without first offering to the widow the option to purchase the premises so intended to
be sold or to be mortgaged or charged at the price named in the will or at a proportionate
price, according to the quantity dealt with, as the case might be, or whether the provisions and
directions contained in the will in reference to the option of purchase were null and void?.
(2) Whether or not, according to the true construction of the will, the son was entitled to
let the premises called Trewyn House, or any part thereof, for a longer term than three years,
or the premises called Lower Trewyn, or any part thereof, for a longer period than seven
86
years, without first offering to the widow the option of renting the same respectively as
directed by the will at the respective rents named therein, or whether the provisions and
directions in the will contained in reference to the letting of the said premises or either of
them were void and of no effect?
May 28. Pearson, J., after stating the facts, continued:-
The question I have to decide is whether, there being an absolute devise in fee simple to the son,
the conditions annexed to it are valid. I will deal first with the condition which relates to selling, and it
will, I hope, shorten the observations which I have to make if I first state the manner in which I
interpret this condition.
The restriction upon selling is this, that if the son, or any person claiming through or under him, is
minded to sell during the lifetime of the testator’s widow, the estate intended to be sold, whether it is
the whole or only part of the devised estates, must be offered to the widow at the price of £ 3000 for
the whole, or at a proportionate price for a part. It is agreed that the value of the whole estate at the
death of the testator was £ 15,000. It is, therefore, in effect a condition that, if the son desires to sell,
he shall offer the estates to the widow, and that she is to be at liberty to buy them at one-fifth of their
value. I consider that (and I mean to decide the case upon that conclusion) as an absolute restraint
against sale during the life of the widow. I mean to treat it as if it had been done “during the life of the
widow you shall not sell,” because to compel him, if he does sell, to sell at one-fifth of the value, and
to throw away four-fifths of the value of the estate is, to my mind, equivalent to a restraint upon
selling at all.
If a covenant be held good which in the event of a grantee in fee simple aliening the land, merely
imposes a fine upon him (or an additional rent on the lands, as in the case before us) the general rule
might be evaded and the principles of it violated by fixing such an amount of fine or additional rent as
would effectually prohibit the alienation, which would clearly be a `circumvention of the law.” To my
mind, to compel the son in the present case, if he chose to sell, to sell at one-fifth of the value of the
estate, is really a prohibition of alienation during the widow’s lifetime.
