ROSHER V. ROSHER, (1884) 26 CH D 801
FACTS
A person A died leaving behind his wife W and a son S. He left his entire property to S, under his Will.The Will also provided, that if S wanted to sell the property, or if any of his heirs wanted to do so, they must offer it to W first and she would have an option to purchase it at one-fifth of the value of the same.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, W would have the option to occupy the premises, for the period in excess of three years, at a fixed rent.
ISSUE
- What was the nature of the conditions incorporated under the Will?
- Whether it constituted an absolute or partial restraint on the power of alienation of this property by the son or his heirs?
HELD
- The character of restraint was:
- with respect to persons, i.e., the testator’s wife. If S wanted to sell the property, he had to first offer it to W, a person specifically named under the Will.
- restraint was with respect to money or price, as it was provided in the Will, that W could purchase the property at a specific price, i.e., 3000, irrespective of whatever might have been its market value.
- 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 W to take the property at a very small rent, at her option.
- The court held that these restrictions amounted to an absolute restraint on S’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 W.
- 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’.