Paton of Kinaldy v Dr Urquhart.

Factual and Procedural Background

In a marriage contract involving Plaintiff and Defendant’s daughter, a tocher (marriage portion) of 3000 merks was stipulated. Following the death of the wife, leaving a son, Plaintiff sought payment of the tocher from Defendant. Defendant suspended payment based on three reasons: first, that although payment was due after a year and a day, Defendant had promised that 2000 merks would be subject to his liferent and thus payment should be suspended during his lifetime; second, that Plaintiff was obliged to infeft (convey legal possession) the son with the lands but had only done so by a base infeftment without showing his own infeftment, having reserved his own liferent which was not provided for in the marriage contract; third, Plaintiff claimed compensation for expenses related to the child’s lying-in and burial.

Legal Issues Presented

1. Whether Defendant’s promise suspending payment of part of the tocher during his lifetime was legally valid given the marriage contract terms.
2. Whether Plaintiff’s base infeftment without showing his own infeftment and reservation of liferent was compliant with the marriage contract obligations.
3. Whether Plaintiff was entitled to compensation for expenses incurred for the lying-in and burial of the child.

Arguments of the Parties

Defendant's Arguments

• The promise suspending payment of 2000 merks was made when Defendant was a minor under curatorship, rendering it null.
• The promise contradicted the solemn marriage contract (tabular nuptialium), violating good morals and was legally reprobated, supported by legal authorities including tit. D. et C. de Pact. Dotal and Voet's Practical Observations.
• It was unreasonable for Plaintiff to divest both fee and liferent to his infant son; the obligation to infeft in fee is distinct from liferent.
• Compensation claims for lying-in and burial expenses were invalid as Plaintiff acted against Defendant’s will, and one who acts involuntarily cannot claim expenses.

Plaintiff's Arguments

• Plaintiff charged Defendant for the tocher following the death of the wife and the birth of the son.
• Plaintiff had only performed a base infeftment of the son and reserved his own liferent, which was not provided for in the marriage contract.
• Claimed compensation for lying-in and burial expenses of the child.

Table of Precedents Cited

Court's Reasoning and Analysis

The court rejected Defendant’s first and second reasons for suspending payment, relying on the legal principle that secret or minor-made promises cannot override solemn marriage contracts, which are public and binding. The court noted that the promise made during minority was null and contrary to established law and morals. Regarding the infeftment, the court distinguished between obligations to infeft in fee and liferent, finding Defendant’s reservation of liferent unreasonable but did not resolve this issue definitively. The court referred the matter to the Ordinary to determine if Defendant was infeft himself and to adjust compensation and expense accounts, although it noted that compensation claims were strictly refusable without immediate verification.

Holding and Implications

The court rejected Defendant’s suspension of payment of the tocher based on the invalidity of the alleged promise and improper infeftment arguments. It ordered further inquiry by the Ordinary regarding Defendant’s infeftment status and compensation claims. The decision directly affects the parties by requiring payment of the tocher and further accounting but does not establish new precedent beyond reaffirming existing principles on marriage contracts and secret agreements.