#### RAYMOND L. WILLIAMS v. DONA LEE WILLIAMS.

(Filed 1 March, 1944.)

1. Divorce §§ 2a, 8—

In an action for divorce, based upon two years separation by mutual consent, the plaintiff must not only show that he and the defendant have lived separate and apart for the statutory period, but also that the separation was voluntary in its inception.

2. Same—

There can be no voluntary separation as a ground for divorce without the conscious act of both of the parties, by an agreement expressed or implied; and there can be no agreement, assent or acquiescence on the part of a spouse who is mentally incapable of assenting.

3. Same—

If a plaintiff, in a divorce action on grounds of separation, contributes to the support of his wife, solely in an attempt to fulfill the obligation imposed by statute, his conduct is not inconsistent with a legal separation; but, if he makes such payments in recognition of his marital status and in discharge of his marital obligations, there is no living separate and apart within the meaning of the statute.

Appeal by defendant from Thompson, J., at September Term, 1943, of Currituck. New trial.

Civil action for divorce on grounds of two years separation.

Plaintiff and defendant were married in 1924. They Have four children, the last of which was born 20 June, 1941. In 1938 they were in *92New York, and plaintiff bad defendant confined in an institution for tbe feeble-minded. Sbe was first sent to tbe Jewish Hospital, tben to Kings County Observation Ward, and from there to an institution in Brooklyn. Plaintiff could not get her out, and so be borrowed money and bad her transferred to a private institution. Sbe was released from this institution in November, 1938. In 1940 be bad her confined in tbe U. S. Public Health Service Institution at Norfolk, and on 6 July, 1939, sbe was committed to tbe Eastern State Hospital at Williamsburg “as insane.” Sbe obtained a furlough on 22 December, 1940, and received a discharge “as restored” 29 January, 1942.

Plaintiff relies upon a separation by mutual agreement entered into ■orally on 9 January, 1941. He testified that on that date they bad a conversation in which sbe said sbe did not want to live with him any longer and wanted a divorce; that when sbe insisted be told her, “I am through and I won’t ever have anything more to do with you. I will help you in any way I can.” He further testified that be tben separated himself from tbe defendant with tbe intent to discontinue all marital relations and has since lived separate and apart from her.

Defendant denied the agreement and offered evidence tending to show that be thereafter contributed to her support, and that they visited and cohabited for some time after tbe alleged agreement.

Tbe usual issues of residence, marriage, and separation were submitted to and answered by the jury in favor of tbe plaintiff. From judgment ■on tbe verdict defendant appealed.

Chester B. Morris and B. Clarence Dozier for plaintiff, appellee.

M. B. Simpson for defendant, appellant.

BabNhill, J.

The court below failed to instruct tbe jury as to tbe law applicable to tbe evidence offered by tbe defendant tending to show that at tbe time of tbe alleged agreement sbe was mentally incapable of consenting to or acquiescing in a separation. This is tbe basis of defendant’s primary exception.

Tbe meaning of tbe terms “separation” and “separate and apart” has been fully and sufficiently discussed in a number of recent decisions of this Court. Lee v. Lee, 182 N. C., 61, 108 S. E., 352; Woodruff v. Woodruff, 215 N. C., 685, 3 S. E. (2d), 5; Byers v. Byers, 222 N. C., 298; Byers v. Byers, 223 N. C., 85; Parker v. Parker, 210 N. C., 264, 186 S. E., 346. Repetition here would be supererogatory.

To establish bis cause of action, based on separation by mutual consent, plaintiff must not only show that be and tbe defendant have lived apart for tbe statutory period, but also that tbe separation was voluntary in its inception.

*93There can be no voluntary separation without the conscious act of both of the parties. There must be an agreement, express or implied. It must appear that they lived apart in a state of separation because of their mutual purpose to do so or because one so determined and the other assented or acquiesced.

But there can be no agreement, assent, or acquiescence on the part of a spouse who is mentally incapable of assenting. Lee v. Lee, supra; Woodruff v. Woodruff, supra; Camire v. Camire, 43 R. I., 489; Pile v. Pile, 94 Ky., 309; Messick v. Messick, 177 Ky., 337, 197 S. W., 792; Galiano v. Monteleone, 178 La., 567, 152 So., 126; 17 Am. Jur., 233; Anno. 51 A. L. R., 769; and 111 A. L. R., 872.

“It is, of course, well understood that when a ground of divorce is dependent upon the voluntary act or omission of a spouse the ground cannot exist if he is insane.” Ray v. Ray, 19 Ala., 522; Knabe v. Berman, 111 A. L. R., 864.

There was evidence that plaintiff, after the alleged agreement, made provision for an allotment out of his salary as a member of the U. S. Coast Guard for the benefit of defendant, and also from time to time contributed to her support. The force and effect of this evidence is for the jury.

If the plaintiff, after parting from defendant, continued to contribute to her support solely in an attempt to fulfill the obligation imposed by statute, his conduct in this respect was not inconsistent with a legal separation. Byers v. Byers, 222 N. C., 298. Conversely, if he made such payments in recognition of his marital status and in discharge of one of his marital obligations, they were not living separate and apart within the meaning of the statute.

Here the evidence is conflicting. The motive which prompted the contributions is material. The court in its charge should explain the law as it applies to the different aspects of this testimony.

The defendant’s indicated exceptive assignment of error must be sustained and a new trial awarded.

New trial.