Blankenship v. Blankenship , 234 N.C. 162 ( 1951 )

66 S.E.2d 680 (1951) 234 N.C. 162

BLANKENSHIP et al.
v.
BLANKENSHIP et al.

No. 90.

Supreme Court of North Carolina.

September 19, 1951.

Oscar Stanton and Pangle & Garrison, Asheville, for appellants.

R. R. Williams, Robt. R. Williams, Jr., Asheville, for appellees.

DEVIN, Chief Justice.

Tenancy by the curtesy is a development of the common law and in North Carolina the rights of the husband, and limitations therein, are declared and defined by statute, G.S. § 52-16. It is a right which the husband may forfeit by specified acts of misconduct or which he may release by a separation agreement. Thompson v. Wiggins, 109 N.C. 508, 14 S.E. 301; Garrett v. Kirtley, 97 W.Va. 484, 125 S.E. 347, 40 A.L.R. 1222; 35 A.L.R. 1526; 49 A.L.R. 148; 15 A.J. 148; 25 C.J.S., Curtesy, § 12, page 54. A release by the husband of his right of tenancy by the curtesy in his wife's lands by properly executed contract with his wife is expressly authorized by statute, G.S. § 52-13, with the added provision that such release may be pleaded in bar of any proceeding to recover the rights released.

The only question here is whether the language in the separation agreement between James Henry Blankenship and his wife Lanie Blankenship is sufficient to constitute a valid release and effective to bar his right to tenancy by the curtesy consummate in the lands described.

The agreement was between husband and wife who had been living separate and apart for several years and was for the final adjustment of their property rights. By it the husband obtained the wife's release to certain lands, and the husband released his rights in other lands to her. There were valuable considerations moving to each. True, the wife's release specifically mentioned dower while in the release of the husband tenancy by the curtesy was not specifically named, but we cannot conceive it was the intention of the parties in executing this final settlement of property rights that the wife should release all her rights in the lands passing to him while he retained a contingent right or interest in lands conveyed to her. We think the language of the separation agreement that the husband released "all rights" that he might have "in any estate" of his wife at her death is sufficient to support the conclusion that a release of his right of tenancy by the curtesy was intended. The word "estate" as here used is comprehensive enough to include land. Black's Law Dictionary; Hass v. Hass, 195 N.C. 734, 740, 143 S.E. 541; Powell v. Woodcock, 149 N.C. 235, 62 S.E. 1071; Foil v. Newsome, 138 N.C. 115, 50 S.E. 597.

We conclude that the court below has ruled correctly, and that the judgment rendered must be affirmed.

Affirmed.

VALENTINE, J., took no part in the consideration or decision of this case.