PARKER, J.
The defendant Ruth U. Turner contends that the deed of separation operated as a substitution for, or a rescission of, the ante-nuptial 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
(Maine), 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 Ill. 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;
S. 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, Sec. 310. The antenuptial agreement 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 Greenleafs 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, Sections 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 Anno. Cas. 312. The making of a second contract dealing with the same subject matter does not, however, necessarily abrogate the former contract.
Bank v. 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, p. 885.
A new contract consistent with, or supplementary 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 Anno. Cases, p. 316; 17 C.J.S., Contracts, Sec. 394.
We said in
Bank v. Supply Co., supra:
“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 inference of substitution (citing authorities), or it must present such inconsistencies with the first contract that the two cannot in any substantial respect stand together. . . . Before the new contract can be accepted as discharging the old, the fact that such was the intention of the parties must clearly appear. . . . We must, of course, keep within the bounds of the writings, but the circumstances surrounding their execution, the relation of the parties and the object to be accomplished, are all to be consulted in arriving at the intent.”
Whether a prior contract is discharged by a new contract depends on the intention of the parties. 17 C.J.S., Contracts, p. 885.
The principles of construction applicable to antenuptial contracts and to contracts generally are the same.
Collins v. Phillips,
259 Ill. 405, 102 N.E. 796, Anno. Cases 1914C 188;
Seuss v. Schukat, supra.
The terms of the antenuptial agreement and of the deed of separation are plain and explicit. The court will determine their legal effect.
Howland v. Stitzer,
240 N.C. 689, 696, 84 S.E. 2d 167.
In both the antenuptial agreement and the deed of separation Ruth U. Turner released her right of dower in the real estate of E. F. Turner. The provision in the deed of separation that she would sign such deeds and papers as might be necessary to enable E. F.
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PARKER, J.
The defendant Ruth U. Turner contends that the deed of separation operated as a substitution for, or a rescission of, the ante-nuptial 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
(Maine), 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 Ill. 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;
S. 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, Sec. 310. The antenuptial agreement 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 Greenleafs 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, Sections 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 Anno. Cas. 312. The making of a second contract dealing with the same subject matter does not, however, necessarily abrogate the former contract.
Bank v. 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, p. 885.
A new contract consistent with, or supplementary 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 Anno. Cases, p. 316; 17 C.J.S., Contracts, Sec. 394.
We said in
Bank v. Supply Co., supra:
“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 inference of substitution (citing authorities), or it must present such inconsistencies with the first contract that the two cannot in any substantial respect stand together. . . . Before the new contract can be accepted as discharging the old, the fact that such was the intention of the parties must clearly appear. . . . We must, of course, keep within the bounds of the writings, but the circumstances surrounding their execution, the relation of the parties and the object to be accomplished, are all to be consulted in arriving at the intent.”
Whether a prior contract is discharged by a new contract depends on the intention of the parties. 17 C.J.S., Contracts, p. 885.
The principles of construction applicable to antenuptial contracts and to contracts generally are the same.
Collins v. Phillips,
259 Ill. 405, 102 N.E. 796, Anno. Cases 1914C 188;
Seuss v. Schukat, supra.
The terms of the antenuptial agreement and of the deed of separation are plain and explicit. The court will determine their legal effect.
Howland v. Stitzer,
240 N.C. 689, 696, 84 S.E. 2d 167.
In both the antenuptial agreement and the deed of separation Ruth U. Turner released her right of dower in the real estate of E. F. Turner. The provision in the deed of separation that she would sign such deeds and papers as might be necessary to enable E. F. Turner to sell, assign or deal with his property was merely a provision consistent with, and supplementary to the antenuptial agreement: its obvious purpose was that she would release her right of dower by her signature to a deed in case the validity of a deed to bar her right of dower might be questioned by anyone. The release of her rights to E. F. Turner’s personal property at his decease in the deed of separation is merely supplementary to the antenuptial agreement.
If Ruth U. Turner and E. F. Turner had not resumed conjugal cohabitation, there is nothing in the two contracts to render the performance of both impossible, so that the two could not stand together. Considering the relationship of the parties and the object to be accomplished in both contracts, it seems plain that it was not the intention of the parties that the deed of separation should discharge the antenuptial agreement, but that the intention of the parties was that the deed of
separation should be consistent with, and supplementary to, the ante-nuptial agreement. Such being the clear intent of the parties — and “the heart of a contract is the intention of the parties,”
Electric Co. v. Insurance Co.,
229 N.C. 518, 50 S.E. 2d 295—no legal inference of substitution of the deed of separation for the antenuptial agreement arises.
The learned and experienced judge below ruled correctly that the deed of separation did not discharge or rescind the antenuptial agreement, that the antenuptial agreement was in full force and effect at the time of E. F. Turner’s death, and that Ruth U. Turner by the plain terms of her antenuptial agreement had no dower in the realty of her deceased husband.
The case of
Hewlett v. Almand
(Court of Appeals of Ga. Division No. 2), 103 S.E. 173, relied upon by the appellant is distinguishable: in that case two antenuptial agreements were before the court.
The judgment entered below is
Affirmed.
Wxnboene and Higgins, JJ., took no part in the consideration or decision of this case.