Scottish Court of Session Decisions

On the 18th July 1867 Alexander Boswell, flaxs-pinner, Leven, died intestate, leaving an estate worth £13,000 in which he was succeeded by his two sisters Agnes and Elizabeth Boswell as next-of-kin, in equal shares. On 15th October thereafter

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the sisters executed a trust-disposition and settlement in which they conveyed to their trustees the whole estate which should belong to them or either of them at the time of the death of the predeceaser of them, under directions to pay certain legacies, and to pay over to the survivor of them for her life the annual proceeds of their said estate. There was also a clause disposing of the residue. By a codicil of 5th December 1868 the trustees were directed to fulfil the instructions of the survivor as to any change of the destination of half of the estate, and to pay over to the survivor such part of said half as she might require or demand for her own use in addition to the annual proceeds of the whole estate. Two other codicils were subsequently executed making variations on the bequests, excluding some and including others, and further, all provisions contained in the trust-disposition and codicils thereto with regard to the residue of their estate were recalled and other bequests of residue were made. On 5th January 1871 Agnes Boswall died, survived by her sister Elizabeth, who on 21st February 1878 executed a deed of directions in which she instructed her trustees to reduce certain annuities by one-half of their amount, and further disposed mortis causa of one-half of the estate to certain beneficiaries who were not named under the original trust-deed and codicils thereto. Various difficulties having arisen as to the construction of the above deeds, this Special Case was presented to the Court, the trustees of the deceased ladies and beneficiaries under the deeds appearing as parties of the first part, and Mrs Campbell or Boswall and Mrs Boswall or Chaffey (whose annuities had been reduced) appearing as parties of the second part. The latter maintained that the clause of the first codicil, in virtue of which the deed of directions bore to be granted, was revoked by the provision contained in the third codicil recalling all provisions with regard to residue, and they also maintained that Elizabeth Boswall barred herself from revoking any portion of the trust-disposition and codicils by accepting under their provisions the whole income of the trustestate. In these circumstances they argued that Elizabeth Boswall had no power by the deed of directions to reduce their respective annuities by one-half, and that she had no power to dispose mortis causa of one-half of the estate or any portion thereof to parties not named as beneficiaries under the original trust-deed and codicils thereto.

The question submitted to the Court was—Whether Elizabeth Boswall was entitled to revoke to the extent of one-half the annuities of the second parties hereto and the bequest of residue?