Lane v. Scarborough

198 S.E.2d 45 (1973)

19 N.C. App. 32

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

No. 7326SC328.

Court of Appeals of North Carolina.

July 25, 1973.

*46 Sanders, Walker & London by Robert G. Sanders and Robert C. Stephens, Charlotte, for plaintiff appellants.

Thomas D. Windsor, Charlotte, for defendant appellee.

PARKER, Judge.

The marriage relationship vests in the respective spouses a number of distinct legal rights. Among these are the rights to consortium, to support (in the case of the dependent spouse, G.S. § 50-16.1 et seq.), to administer the estate of the deceased spouse in case of intestacy as provided by G.S. § 28-6(a)(1), to take an elective life estate as provided by G.S. § 29-30, to dissent from the will of the deceased spouse as provided by G.S. § 30-1, to receive a year's allowance under G.S. § 30-15, and to intestate succession under G.S. § 29-13 and G.S. § 29-14. Any or all of these rights *47 may be surrendered by a properly drawn separation agreement complying with the requirements of G.S. § 52-6. The question presented by the present appeal is whether one of these rights, the right to intestate succession under G.S. § 29-13 and G.S. § 29-14, was surrendered by the separation agreement here involved. We agree with the trial judge that it was not.

By express language in the agreement each party gave up the right to consortium, to support, to administer upon the estate of the other, and agreed that each might thereafter "purchase, acquire, own, hold, possess, dispose of, and convey" real and personal property without the consent or joinder of the other. Nowhere is there any express language releasing the right of intestate succession nor is the language of the agreement so all encompassing that such a release must necessarily be implied. To read such a release into the agreement would require insertion of language which the parties themselves failed to include.

It is, of course, possible that express provision for surrender of intestate rights was omitted from the contract in this case solely by inadvertence, and that had the attention of the parties been directed to this matter, such a provision would have been included. It would be pure speculation to conjecture that such was actually the case. The fact remains that no express provision for such surrender was included in the written contract signed by the parties, nor is such a provision necessarily implied from the express language which was contained therein. We must construe the contract as written and signed by the parties, but we have no power to write a new contract binding them to provisions which, for whatever reasons, they failed to include.

Judgment affirmed.

MORRIS, J., concurs.

BROCK, J., dissents.