Ivery v. Ivery, 241

• Citation: 129 S.E.2d 457, 258 N.C. 721
• Case Date: February 27, 1963
• Court: United States State Supreme Court of North Carolina

Page 457

129 S.E.2d 457 258 N.C. 721 David R. IVERY
v.
Gladys W. IVERY, Executrix of the Estate of Paul F. Ivery,
and, Gladys W. Ivery, Individually. No. 241 Supreme Court of North Carolina. Feb. 27, 1963

Robert G. Sanders and J. C. Sedberry, Charlotte, for plaintiff appellee.

B. F. Wellons and Brock Barkley, Charlotte, for defendant appellant.

BOBBITT, Justice.

Defendant's Assignments of Error Nos. 1 and 5 are based on his exceptions to the overruling of his motions for judgment of nonsuit. The only motion to be considered is that made by defendant at the conclusion of all the evidence. G.S. § 1-183; Spaugh v. Winston-Salem, 249 N.C. 194, 105 S.E.2d 610.

The evidence, when considered in the light most favorable to plaintiff, was sufficient to support a finding that Paul F. Ivery, deceased, at the time of the marriage ceremony on May 12, 1960, was mentally incapable of contracting a valid marriage. Indeed, defendant does not contend otherwise.

Defendant proffered as evidence the record of the proceedings before the Clerk of the Superior Court of Mecklenburg County showing the probate on July 20, 1960, in common form, as the last will and testament of Paul F. Ivery, deceased, of a paper writing dated May 16, 1960, in which Gladys W. Ivery is named sole beneficiary and sole executrix. Plaintiff's objection to the admission of this record was sustained and defendant excepted. (Note: Plaintiff's counsel stated that no caveat had been filed.)

Defendant contends plaintiff cannot maintain this action unless and until the said will is attacked and set aside in a caveat proceeding. The proffered evidence as to a probated will of Paul F. Ivery, deceased, was excluded and therefore not for consideration in passing upon defendant's said motion for judgment of nonsuit. Even so, whether the probated will, if admitted, would bar plaintiff's action is discussed in the briefs. The respective contentions relate to the proper interpretation of the statute (Session Laws 1953, c. 1098, § 6) now codified as G.S. § 31-5.4, which provides:

' § 31-5.4. Revocation by divorce.--Dissolution of marriage by absolute divorce after making a will does not revoke the will of any testator but it revokes all provisions in the will in favor of the testator's spouse so divorced, including, but not by way of limitation, the appointment of such spouse as executor or executrix.'

Defendant contends the quoted state refers expressly and solely to the dissolution of a marriage by absolute divorce and is not applicable where a marriage is annulled. Plaintiff contends the word 'divorce,' as used in the quoted statute, includes the annulment as well as the dissolution of a marriage.

[258 N.C. 725] The technical distinctions between an action for absolute divorce and a suit for annulment are well known and need not be restated. 17 Am.Jur., Divorce and Separation § 3; 27A C.J.S. Divorce, § 1; Nelson, Divorce and Annulment, Second Edition, Volume 3, § 31.04; Pridgen v. Pridgen, 203 N.C. 533, 166 S.E. 591; Sawyer v. Slack, 196 N.C. 697, 146 S.E. 864.

In Johnson v. Kincade (1843), 37 N.C. 470, this Court held the statute conferring jurisdiction 'in all cases of applications for divorce' conferred jurisdiction over all matrimonial causes, including 'the jurisdiction to pronounce the nullity of a marriage de facto for want of capacity.'

In Lea v. Lea, 104 N.C. 603, 10 S.E. 488, the action was 'to declare a marriage void because of a prior existing marriage on the part of the defendant.' The question was

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whether the court could award alimony pendente lite to the plaintiff under a statute providing for the award of alimony pendente lite where a married woman applied to a court for a divorce from 'the bonds of matrimony or from bed and board.' It was held the word 'divorce' was used in a general and comprehensive sense and inincluded an action for the annulment of a marriage. Hence, the award of alimony pendente lite was upheld.

In Taylor v. White, 160 N.C. 38, 75 S.E. 941, L.R.A.1916C, 704, and in Watters v. Watters, 168 N.C. 411, 84 S.E. 703, this Court, citing Lea v. Lea, supra, while recognizing the technical distinctions, refers to an annulment of a marriage as coming under the general heading of divorce.

In Sawyer v. Slack, supra, this Court, in opinion by Connor, J., said: 'An action to annul a marriage for statutory reasons is in the nature of an action for divorce.'

In enacting G.S. § 31-5.4, we think it clear the General Assembly used the word 'divorce' in its general and comprehensive sense, that is, as denoting a judgment or decree by which a marriage is dissolved or annulled, rather than in its limited and technical sense. This being true, an attack on the (proffered) probated will is not a prerequisite to plaintiff's right to maintain this action. An annulment of the marriage of Paul F. Ivery, deceased, and defendant would, under G.S. § 31-5.4, revoke all provisions of said will in favor of defendant. In such event, the heir(s) at law and next of kin of Paul F. Ivery, deceased, would be entitled to his estate.

The more difficult question presented by defendant's motion for judgment of nonsuit is whether the marriage of Paul F. Ivery and defendant is subject to attack after Paul F. Ivery's death.

'The question whether a suit to annul a marriage can be instituted and maintained after the death of one of the parties to the marriage [258 N.C. 726] or, if instituted prior to death, may be continued or revived by or against a representative of the deceased, resolves itself into inquiry whether the marraige is void in the true sense or voidable only. The invalidity of a marriage which is absolutely void or void ab initio may be maintained in a proceeding between any proper parties, either in the lifetime, or after the death, of the supposed husband or wife, and whether the question arises directly by petition for annulment or collaterally in other proceedings, at least in the absence of a statute requiring the action to be brought in the lifetime of both parties. But the right to annulment of a marriage which is voidable only is a personal right and proceedings for annulment must be brought during the lifetime of both parties to the marriage.' 4 Am.Jur.2d, Annulment of Marriage § 69; Annotations, 'Right to attack validity of marriage after death of party thereto,' 76 A.L.R. 769 and 47 A.L.R.2d 1393.

At common law, the marriage of a person who was mentally incompetent to enter into the marriage was void and open to attack after the death of either or both of the parties. 76 A.L.R. 772; 47 A.L.R.2d 1396; Gathings v. Williams, 27 N.C. 487. In each jurisdiction decision as to what extent, if any, the rule of the common law has been superseded or modified depends upon the statutes of such jurisdiction. Too, the significance of each court decision must be considered in relation to the statutory provisions then in force.

In Pridgen v. Pridgen, supra, the action was to annul a pretended marriage between the plaintiff and the defendant on the ground the defendant had a living husband at the time the ceremony between the plaintiff and the defendant was celebrated. While mindful that this action was to annul a pretended marriage by a party thereto on the ground it was bigamous, the following portion of the opinion of Adams, J., is pertinent:

'Between void and voidable marriages the law recognizes a distinction which applies to the status of the parties before the

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marriage relation is dissolved. A voidable marriage is valid for all civil purposes until annulled by a competent...