Turner v. Turner, 32

Decision Date21 September 1955
Docket NumberNo. 32,32
PartiesWille E. TURNER and George L. Turner, lndividually and as Administrators of the Estate of E. F. Turner, Petitioners, v. Hebson D. TURNER, E. Royall Turner, Odette T. Webb, Olia T. Spruill, Bessie T. Hyatt and Charile P. Turner; and Ruth U. Turner, Additional Defendant, Defendants.
CourtNorth Carolina Supreme Court

John H. Hall, Elizabeth City, for Ruth U. Turner defendant, appellant.

T. W. Costen, Gatesville, and Worth & Horner, Elizabeth City, for plaintiff, appellees.

PARKER, Justice.

The defendant Ruth U. Turner contends that the deed of separation operated as a substitution for, or a rescission of, the antenuptial agreement, that the resumption of conjugal cohabitation by E. F. Turner and herself annulled the deed of separation, and therefore she is entitled to dower.

Ruth Umphlett, in contemplation of marriage, with E. F. Turner was expressly authorized by G.S. § 52-13 to release by valid contract her right of dower in the lands of E. F. Turner. Stewart v. Stewart, 222 N.C. 387, 23 S.E.2d 306; Blankenship v. Blankenship, 234 N.C. 162, 66 S.E.2d 680. This statute states 'such releases may be pleaded in bar of any action or proceeding for the recovery of the rights and estates so released.'

In this antenuptial agreement Ruth Umphlett in plain and unequivocal language acquitted, released and discharged all lands and real estate of which E. F. Turner is possessed, or shall be entitled to at his decease, from all claims of dower and homestead, so that his realty, in the event she survived him, should go in every respect as if E. F. Turner had continued unmarried. The mutuality of the stipulations in this agreement whereby E. F. Turner, the prospective husband, and Ruth Umphlett, the prospective wife, mutually released rights in each other's property is a sufficient consideration. Blankenship v. Blankenship, supra; Smith v. Farrington, 139 Me. 241, 29 A.2d 163. At the time of the execution of the agreement Ruth Umphlett had full knowledge of E. F. Turner's financial status. She owned property at the time, and so did he. She entered into the agreement freely and voluntarily: there is no suggestion of any fraud or imposition in procuring her to execute it. The parties were legally competent to contract. The Clerk of the Superior Court of Gates County, before whom the parties acknowledged the due execution of the antenuptial agreement, incorporated in his certificate that the agreement was not unreasonable or injurious to Ruth Umphlett.

There is no contention that the antenuptial agreement was unjust or unreasonable, or that it was improperly executed.

Antenuptial agreements are not against public policy, and if freely and intelligently and justly made, are considered in many circumstances as conducive to marital tranquility and the avoidance of unseemly disputes concerning property. Seuss v. Schukat, 358 I11. 27, 192 N.E. 668, 95 A.L.R. 1461.

The antenuptial agreement here is a valid contract, and in equity should be enforced as written, Stewart v. Stewart, supra, unless the deed of separation operated as a substitution for, or a rescission of, the antenuptial agreement. The deed of separation was annulled by the subsequent resumption of conjugal cohabitation by Ruth U. Turner and E. F. Turner. Campbell v. Campbell, 234 N.C. 188, 66 S. E.2d 672; State v. Gossett, 203 N.C. 641, 166 S.E. 754.

It seems that in the absence of contrary provisions in an antenuptial agreement, or of special statutory provisions, a separation and reconciliation between husband and wife will not affect or extinguish property rights under such an agreement. Cryar v. Cryar, 243 Ala. 318, 10 So.2d 11; Suess v. Schukat, supra; 41 C.J.S., Husband and Wife, § 310. The antenuptial agreeement here contains no contrary provisions, and we have no statutory provisions applicable to such facts.

We said in Taylor v. Taylor, 197 N.C. 197, 148 S.E. 171, that on grounds of public policy, deeds of separation between husband and wife are not favored by the law. There is this prime difference between a deed of separation and an antenuptial agreement: the former provides for a husband and wife living separate and apart, the latter contemplates a marriage and a living together.

Antenuptial contracts may during coverture be modified or rescinded with the full and free consent of the parties thereto, provided the rights of third parties have not intervened. In re Greenleaf's Estate, 169 Kan. 22, 217 P.2d 275, 280; O'Dell v. O'Dell, 238 Iowa 434, 26 N.W.2d 401; 41 C.J.S., Husband and Wife, §§ 93 and 109; 26 Am.Jur., Husband and Wife, Sections 302 and 317.

It is well settled law that the parties to a contract, no rights of third parties having intervened, may rescind it, or substitute another contract for it, by making a new contract inconsistent therewith. Redding v. Vogt, 140 N.C. 562, 53 S.E. 337, 6 Ann.Cas. 312. The making of a second contract dealing with the same subject matter does not, however, necessarily abrogate the former contract. Commercial National Bank of Charlotte v. Charlotte Supply Co., 226 N.C. 416, 38 S. E.2d 503.

A new contract between the same parties which contains nothing inconsistent with the older one does not discharge the latter. Drown v. Forrest, 63 Vt. 557, 22 A. 612, 14 L.R.A. 80; 12 Am.Jur., Contracts, Sec. 433; 17 C.J.S., Contracts, § 394, p. 885.

A new contract consistent with, or suplementary to, a prior contract does not discharge the prior contract. Orpheus Vaudeville Co. v. Clayton Inv. Co., 41 Utah 605, 128 P. 575; Uhlig v. Barnum, 43 Neb. 584, 61 N.W. 749; Note to 6 Ann.Cas. page 316; 17 C.J.S., Contracts, § 394.

We said in Commercial National Bank of Charlotte v. Charlotte Supply Co., supra [226 N.C. 416, 38 S.E.2d 509]: 'To have the effect of rescission, it' (the second contract) 'must either deal with the subject matter of the former contract so comprehensively as to be complete within itself and to raise the legal...

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    ..., 250 N.C. 640, 644, 109 S.E.2d 365 (1959).80 Zinn v. Walker , 87 N.C. App. 325, 336, 361 S.E.2d 314 (1987) (citing Turner v. Turner , 242 N.C. 533, 89 S.E.2d 245 (1955) ) (emphasis in original).81 Cf. In re Lason, Inc. , 314 B.R. 296, n. 3 (Bankr. D. Del. 2004) ("The ... Agreement, which b......
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    ...Wilson v. McClenny , 262 N.C. 121, 136 S.E.2d 569 (1964) ; Tomberlin , 250 N.C. at 644, 109 S.E.2d at 367–68 ; Turner v. Turner , 242 N.C. 533, 89 S.E.2d 245 (1955) ; Bank v. Supply Co. , 226 N.C. 416, 38 S.E.2d 503 (1946) ). Here, neither plaintiff nor the State Defendants have argued befo......
  • Stewart v. Stewart, No. COA99-1482.
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    • December 29, 2000
    ...also apply to premarital agreements. Howell v. Landry, 96 N.C.App. 516, 525, 386 S.E.2d 610, 615 (1989) (citing Turner v. Turner, 242 N.C. 533, 539, 89 S.E.2d 245, 249 (1955)), disc. review denied, 326 N.C. 482, 392 S.E.2d 90 (1990); Hagler v. Hagler, 319 N.C. 287, 294, 354 S.E.2d 228, 234 ......
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    • October 20, 1987
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