Lane v. Scarborough

• Decision Date: 12 December 1973
• Docket Number: No. 64,64
• Citation: 284 N.C. 407,200 S.E.2d 622
• Parties: Thomas G. LANE, Jr., Administrator d.b.n. of the Estate of Tommy Curtis Colee, Deceased v. Betty Colee SCARBOROUGH et al.
• Court: North Carolina Supreme Court

Page 622

200 S.E.2d 622

284 N.C. 407

Thomas G. LANE, Jr., Administrator d.b.n. of the Estate of Tommy Curtis Colee, Deceased v. Betty Colee SCARBOROUGH et al.

No. 64.

Supreme Court of North Carolina.

Dec. 12, 1973.

Allen A. Bailey by Douglas A. Brackett, Charlotte, for defendant appellee.

Sanders, Walker & London by Robert G. Sanders and Robert C. Stephens, Charlotte, for Betty Colee scarborough and Thomas W. Colee.

SHARP, Justice:

As the parties have stipulated, the sole question presented by this appeal is whether Lynn, by executing the separation agreement, released her distributive share as surviving spouse in the estate of Colee. G.S. § 29--13 and G.S. § 29--14.

Questions relating to the construction and effect of separation agreements between a husband and wife are ordinarily determined by the same rules which govern the interpretation of contracts generally. Whenever a court is called upon to interpret a contract its primary purpose is to ascertain the intention of the parties at the moment of its execution. Bowles v. Bowles, 237 N.C. 462, 75 S.E.2d 413 (1953); 24 Am.Jur.2d Divorce and Separation § 904 (1966); 27B C.J.S. Divorce § 301(3) (1959).

'The heart of a contract is the intention of the parties, which is to be ascertained from the expressions used, the subject matter, the end in view, the purpose sought, and the situation of the parties at the time.' Electric Co. v. Insurance Co., 229 N.C. 518, 520, 50 S.E.2d 295, 297 (1948). When a contract is in writing and free from any ambiguity which would require resort to extrinsic evidence, or the consideration of disputed fact, the intention of the parties is a question of law. The court determines the effect of their agreement by declaring its legal meaning. Briggs v. Mills, Inc., 251 N.C. 642, 111 S.E.2d 841 (1960); Howland v. Stitzer, 240 N.C. 689, 84 S.E.2d 167 (1954); Strigas v. Insurance Co., 236 N.C. 734, 73 S.E.2d 788 (1953); Atkinson v. Atkinson, 225 N.C. 120, 33 S.E.2d 666 (1945); 4 Williston, Contracts § 616 (3d ed. 1961); Calamari & Perillo Contracts § 49 (1970).

A contract, however, encompasses not only its express provisions but also all such implied provisions as are necessary to effect the intention of the parties unless express terms prevent such inclusion. 4 Williston, Contracts § 601B (3d ed. 1961). 'The court will be prepared to imply a term if there arises from the language of the contract itself, and the circumstances under which it is entered into, an inference that the parties must have intended to stipulation in question.' 1 Chitty, Contracts § 693 (23d ed. A. G. Guest 1968). The doctrine of implication of unexpressed terms has been succinctly stated as follows:

'Intention or meaning in a contract may be manifested or conveyed either expressly or impliedly, and it is fundamental that that which is plainly or necessarily implied in the language of a contract is as much a part of it as that which is expressed. If it can be plainly seen from all the provisions of the instrument taken together that the obligation in question was within the contemplation of the parties when making their contract or is necessary to carry their intention into effect, the law will imply the obligation and enforce it. The policy of the law is to supply in contracts what is presumed to have been inadvertently omitted or to have been deemed perfectly obvious by the parties, the parties being supposed to have made those stipulations which as honest, fair, and just men they ought to have made.' 17 Am.Jur.2d Contracts § 255 at 649 (1964). However, '(n)o meaning, terms, or conditions can be implied which are inconsistent with the expressed provisions.' 17 Am.Jur.2d Contracts, Supra at 652.

We come now to apply the foregoing principles to the construction of the separation agreement which Colee and Lynn executed in June 1970. In express terms they declared that they could no longer live together without endangering their health and well-being. They agreed that henceforth they would live wholly separate and apart from each other as though they had never been married and that neither would molest the other or interfere in his affairs. She agreed to make no demands upon him for support and to...