Costine’s Trustees v Costine: HL 20 Mar 1879

Succession – Parent and Child – Power to Revoke – Jus quiesitum tertio.
A father and son entered into a deed of agreement by which the father agreed to pay his son pounds 7000 as the price of his consent to the disentail of an estate. pounds 4000 was to be paid absolutely, the remaining pounds 3000 was to be paid to trustees, ‘to be held by them in trust for the use and behoof of the son, but under the declaration that it should be lawful for the father to limit the power and control of the son over the said sum to such extent and in such way as he should think proper, and in particular to direct the trustees to hold the sum for behoof of the son in liferent only, and for the issue of his body in fee, whom failing to his nearest heirs and assignees.’ The father thereafter executed a deed of declaration of trust, which was also signed by the son, who therein expressly declared his concurrence and acquiescence, providing inter alia that in the event of the son dying without issue the trustees should hold the pounds 3000 for the father’s sister and her heirs. The trustees paid the income to the son. After his father’s death the son married, and at his death he was survived by his wife, to whom shortly before, in a deed of revocation of the declaration of trust, he had bequeathed the pounds 3000. Held (affirming judgment of the Second Division of the Court of Session) that the deed of revocation was effectual, the destination in the deed of trust being truly a testamentary destination by the son, and no jus quaesitum therefore having arisen to the beneficiaries under it.


Lord Chancellor (Cairns), Lord Hatherley, and Lord Selborne.


[1879] UKHL 496, 16 SLR 496,




England and Wales


Updated: 05 July 2022; Ref: scu.637955