Sloop v. Sloop , 1974 N.C. App. LEXIS 1982 ( 1974 )

HEDRICK, Judge.

Since the defendant’s right to dissent from her husband’s will depends on whether she is entitled to take a widow’s share of his estate under G.S. 29-13 and G.S. 29-14, Tilley v. Tilley, 268 N.C. 630, 633, 151 S.E. 2d 592, 593 (1966), the sole question for resolution on this appeal is whether Judge Ervin erred in concluding that the defendant by the terms of the deed of separation contracted away her right to share as a surviving spouse in her husband’s estate and that her dissent to his will was a nullity. Paragraphs of the deed of separation pertinent to this inquiry are as follows:

“Third: The party of the first part [defendant] does hereby fully release and forever discharges the party of the second part [James D. Sloop, Sr.] of any and all liabilities of whatsoever the kind and nature arising out of the marriage between the parties, and the party of the first part releases the party of the second part and waives any and all right to alimony and support for herself; the party of the second part does hereby make the party of the first part a free trader within the meaning of the laws of the State of North Carolina, and does hereby give and grant unto the party of the first part the absolute right and privilege to mortgage, sell and convey any and all classes and kinds of property, real, personal, or mixed, and wheresoever situated, free and clear from the joinder of the party of the second part, and that the party of the second part hereby quitclaims all right, title and interest which he may now have or hereafter acquire in and to the personal property of the party of the first part.

Fourth : And likewise, the party of the first part does hereby quitclaim unto the party of the second part all right, title and interest which she may now have or hereafter acquire in and to the personal property of the party of the second part, by reason of the marriage relation which formerly existed between the parties, and does hereby give and grant unto this party of the second part the absolute right and privilege to mortgage, sell, and convey any and all classes and kinds of property, real, personal or mixed, and wheresoever situated, free from the joinder of the party of the first part.”

While we recognize that the parties did not, as contended by the defendant, by express language release his or her right to administer on the estate of the other or to share as a surviving spouse in the estate of the other, we are of the opinion that such intention is implicit in the express provisions of the deed of separation, their situation, and their purpose at the time the contract was executed. Lane v. Scarborough, 284 N.C. 407, 200 S.E. 2d 622 (1973). It seems inconceivable that either surviving party to this deed of separation could claim upon the death of the other that which manifestly he or she could not claim while both parties were living. Therefore, we hold that by the terms of the deed of separation the defendant released her right to take a widow's share of her husband’s estate and thereby waived her right to dissent from his will.

Affirmed.

Chief Judge Brock and Judge Martin concur.