{ "id": 8564446, "name": "JOHN DOUGLAS TILLEY, Individually and JOHN DOUGLAS TILLEY, Executor of the Estate of CAREY C. TILLEY, Deceased, v. MARY ANN HALL TILLEY", "name_abbreviation": "Tilley v. Tilley", "decision_date": "1966-12-14", "docket_number": "", "first_page": "630", "last_page": "636", "citations": [ { "type": "official", "cite": "268 N.C. 630" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "35 A.L.R. 2d 707", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 0 }, { "cite": "117 S.E. 2d 826", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "832" } ], "opinion_index": 0 }, { "cite": "253 N.C. 620", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626659 ], "pin_cites": [ { "page": "629" } ], "opinion_index": 0, "case_paths": [ "/nc/253/0620-01" ] }, { "cite": "140 S.E. 2d 714", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "264 N.C. 27", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570275 ], "opinion_index": 0, "case_paths": [ "/nc/264/0027-01" ] }, { "cite": "133 S.E. 2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "260 N.C. 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575774 ], "opinion_index": 0, "case_paths": [ "/nc/260/0628-01" ] }, { "cite": "90 S.E. 2d 547", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "243 N.C. 259", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623607 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/243/0259-01" ] }, { "cite": "134 S.E. 2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "261 N.C. 48", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571650 ], "opinion_index": 0, "case_paths": [ "/nc/261/0048-01" ] }, { "cite": "89 S.E. 2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "248" } ], "opinion_index": 0 }, { "cite": "242 N.C. 533", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618335 ], "pin_cites": [ { "page": "538" } ], "opinion_index": 0, "case_paths": [ "/nc/242/0533-01" ] }, { "cite": "12 S.E. 57", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "107 N.C. 273", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273236 ], "opinion_index": 0, "case_paths": [ "/nc/107/0273-01" ] }, { "cite": "1913 D, 261", "category": "reporters:state", "reporter": "Dall.", "opinion_index": 0 }, { "cite": "74 S.E. 327", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "158 N.C. 408", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655606 ], "opinion_index": 0, "case_paths": [ "/nc/158/0408-01" ] }, { "cite": "117 S.E. 12", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "185 N.C. 332", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656010 ], "opinion_index": 0, "case_paths": [ "/nc/185/0332-01" ] }, { "cite": "166 S.E. 754", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "203 N.C. 641", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616993 ], "opinion_index": 0, "case_paths": [ "/nc/203/0641-01" ] }, { "cite": "187 S.E. 768", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "210 N.C. 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627593 ], "opinion_index": 0, "case_paths": [ "/nc/210/0554-01" ] }, { "cite": "66 S.E. 2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "234 N.C. 188", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620177 ], "opinion_index": 0, "case_paths": [ "/nc/234/0188-01" ] }, { "cite": "135 S.E. 2d 18", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "21" } ], "opinion_index": 0 }, { "cite": "261 N.C. 445", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573965 ], "pin_cites": [ { "page": "449" } ], "opinion_index": 0, "case_paths": [ "/nc/261/0445-01" ] } ], "analysis": { "cardinality": 671, "char_count": 15528, "ocr_confidence": 0.561, "pagerank": { "raw": 2.3130717302101175e-07, "percentile": 0.7886772549287623 }, "sha256": "3327a5a8c644ec9b86a6e971bfe9bd3778b1b49ef0552f08a22028596b18d87f", "simhash": "1:67062c72d0837181", "word_count": 2533 }, "last_updated": "2023-07-14T16:01:58.333486+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JOHN DOUGLAS TILLEY, Individually and JOHN DOUGLAS TILLEY, Executor of the Estate of CAREY C. TILLEY, Deceased, v. MARY ANN HALL TILLEY." ], "opinions": [ { "text": "Bobbitt, J.\nAllegations and admissions in the pleadings establish the facts narrated below.\nCarey C. Tilley and defendant were married July 20, 1962. They separated February 6, 1964. Defendant filed an action for alimony without divorce. Carey C. Tilley answered and alleged a cross action for divorce from bed and board. On April 27, 1964, a consent judgment was entered in said action and the parties executed a \u201cContract and Deed of Separation.\u201d Carey C. Tilley died December 23, 1964. Plaintiff qualified as executor on December 28, 1964. Defendant filed her purported dissent to said will on February 4, 1965.\nThe consent judgment, which was signed by His Plonor Allen H. Gwyn, the presiding judge, and by the parties and their counsel, dismissed the action and the cross action \u201cwith prejudice.\u201d The judgment recites \u201ca full and complete settlement of all matters and things in controversy\u201d on the terms set forth in the \u201cContract and Deed of Separation.\u201d\nThe \u201cContract and Deed of Separation\u201d were duly executed and acknowledged before Judge Gwyn, who, after examination of defendant separate and apart from Carey C. Tilley, her husband, found it was not unreasonable or injurious to her and so certified as provided in the' statute then codified as G.S. 52-12.\nThe \u201cContract and Deed of Separation,\u201d in brief summary, provided: The parties agreed to continue to live separate and apart. Carey C. Tilley agreed to execute and deliver to defendant a quitclaim deed to the homeplace in Jamestown, North Carolina, and to transfer to defendant\u2019s son all his right, title and interest in a certain automobile. They agreed upon a division of certain articles of personal property. Each released all rights by reason of their marriage to any and all property then owned or thereafter acquired by the other, \u201cincluding the right to administer and the right by the laws of distribution to a part of the personal estate\u201d of the other. Carey C. Tilley agreed to pay, \u201cin full and complete discharge of all his obligation for her support, maintenance, subsistence and counsel fees,\u201d the sum of $8,625.00, of which $2,500.00 was to be paid immediately and Carey C. Tilley was to execute and deliver to defendant a note for $6,125.00 payable at the rate of $200.00 a month until the full sum of $6,125.00 was paid, without interest. It was provided that, \u201c(u)pon execution and delivery of said note in the amount of $6,125.00, the party of the first part (Carey C. Tilley) is fully and completely discharged of and from any and all liability in connection with the support, subsistence, maintenance and counsel fees of the party of the second part (defendant).\u201d\nDefendant\u2019s right to dissent depends upon whether she would be entitled to a widow\u2019s share in Carey C. Tilley\u2019s estate had he died intestate. Nothing else appearing, the terms of the \u201cContract and Deed of Separation\u201d constitute a bar to defendant\u2019s asserted right to a widow\u2019s share. Defendant does not attack the validity of the \u201cContract and Deed of Separation\u201d when executed, acknowledged and approved by Judge Gwyn. She contends the provisions of the \u201cContract and Deed of Separation\u201d that would otherwise bar her were nullified by subsequent events alleged in the second and third further answers and defenses.\n\u201cA motion for judgment on the pleadings admits, for the purpose of the motion, the allegations of the adverse party, and the pleading of the adverse party must be liberally construed.\u201d 3 Strong, N. C. Index, Pleadings \u00a7 30. Judgments on the pleadings are not favored. Edwards v. Edwards, 261 N.C. 445, 449, 135 S.E. 2d 18, 21.\nIn her second further answer and defense, defendant alleged: \u201cSubsequent to April 27, 1964, the defendant and Carey C. Tilley-became reconciled and lived together and cohabited as husband and wife in Jamestown, North Carolina and at other places.\u201d Defendant\u2019s third further answer and defense contains this allegation: \u201cThe defendant and Carey C. Tilley cancelled the separation agreement referred to in paragraph 9 of the plaintiff\u2019s complaint.\u201d Paragraph 9 of the complaint refers to said \u201cContract and Deed of Separation.\u201d\nIn the opinion of Ervin, J., in Campbell v. Campbell, 234 N.C. 188, 66 S.E. 2d 672, it is stated that \u201ca separation agreement is annulled, avoided, and rescinded, at least as to the future, by the act of the spouses in subsequently resuming conjugal cohabitation. Reynolds v. Reynolds, 210 N.C. 554, 187 S.E. 768; S. v. Gossett, 203 N.C. 641, 166 S.E. 754; Moore v. Moore, 185 N.C. 332, 117 S.E. 12; Archbell v. Archbell, 158 N.C. 408, 74 S.E. 327, Ann. Cas. 1913 D, 261; Smith v. King, 107 N.C. 273, 12 S.E. 57.\u201d Later decisions contain similar general statements: Turner v. Turner, 242 N.C. 533, 538, 89 S.E. 2d 245, 248; Williams v. Williams, 261 N.C. 48, 134 S.E. 2d 227.\nIn Jones v. Lewis, 243 N.C. 259, 90 S.E. 2d 547, Denny, J. (later C.J.), stated: \u201cIt is well established in this jurisdiction that where a husband and wife enter into a separation agreement and thereafter become reconciled and renew their marital relations, the agreement is terminated for every purpose in so far as it remains execu-tory. (Citations) Even so, a reconciliation and resumption of marital relations by the parties to a separation agreement would not revoke or invalidate a duly executed deed of conveyance in a property settlement between the parties.\u201d This statement has been quoted with approval in Hutchins v. Hutchins, 260 N.C. 628, 133 S.E. 2d 459, and in Joyner v. Joyner, 264 N.C. 27, 140 S.E. 2d 714.\nIn Stanley v. Cox, 253 N.C. 620, 629, 117 S.E. 2d 826, 832, these statements appear: \u201cFor a discussion of the clear distinction between the provisions and considerations for a property settlement and those for alimony see 17A Am. Jur., Divorce and Separation, \u00a7 883 et seq. . . . See Jones v. Lewis, 243 N.C. 259, 90 S.E. 2d 547, to the effect that an executed property settlement is not affected by a mere reconciliation and resumption of cohabitation.\u201d\nThe legal principles on which plaintiff relies are stated in 24 Am. Jur. 2d, Divorce and Separation \u00a7 913, p. 1039, as follows: \u201cWhere the parties execute a true property settlement, as distinguished from a separation agreement, and they thereafter become reconciled and resume cohabitation, the preferred view is that the agreement is not thereby terminated; or, stated as a rule of evidence, proof of a reconciliation and resumption of cohabitation does not alone establish the termination of a true property settlement. The answer to the question depends largely upon the intention of the parties, and to some extent upon whether the settlement has been fully executed \u25a0or is executory.\u201d\nPlaintiff contends the \u201cContract and Deed of Separation\u201d contains a property settlement in which defendant, in consideration of the benefits she received, released all her rights to Carey C. Tilley\u2019s property and estate; and that a mere reconciliation and resumption of cohabitation is insufficient to reinstate her original rights with reference thereto.\nDefendant alleges somewhat more than a mere reconciliation and resumption of cohabitation. The allegation is that, subsequent to April 27, 1964, Carey C. Tilley and defendant \u201cbecame reconciled and lived together and cohabited as husband and wife in Jamestown, North Carolina, and at other places.\u201d (Our italics.) In addition, defendant alleges explicitly that Carey C. Tilley and defendant cancelled said \u201cContract and Deed of Separation.\u201d\nIn 24 Am. Jur. 2d, Divorce and Separation \u00a7 914, p. 1041, this statement appears: \u201cIt is, of course, competent for the parties to make a new agreement, at the time of or in connection with a reconciliation, that a property settlement shall be rescinded, and an agreement to rescind may be oral even though the original contract states that it shall not be changed without the written consent of both parties.\u201d Reference is also made to the comprehensive annotation, \u201cReconciliation as affecting separation agreement or decree/'' 35 A.L.R. 2d 707, and decisions supplemental thereto.\nThe conclusion reached is that defendant\u2019s allegations, when considered in the light most favorable to her, are sufficient to withstand plaintiff\u2019s motion for judgment on the pleadings. Hence, the court erred in allowing said motion and entering judgment in accordance therewith.\nThere remains for consideration the assignment of error based on defendant\u2019s exception to the portion of Judge Olive\u2019s order striking defendant\u2019s \u201cfurther answer and counterclaim.\u201d Defendant alleges she owns the note dated April 27, 1964, in the amount of $6,125.00, \u201cissued by C. C. Tilley\u201d; that no payment had been made thereon; and that she is entitled to recover thereon the full sum of $6,125.00 from the plaintiff-executor.\nPlaintiff contends this \u201cfurther answer and counterclaim\u201d was properly stricken on the ground defendant\u2019s asserted action on the $6,125.00 note is not a permissible counterclaim. Plaintiff denominates his action as an action for a declaratory judgment under G.S. 1-253, et seq. Decision depends upon a determination of defendant\u2019s legal rights, if any, under the \u201cContract and Deed of Separation\u201d as of the date it was executed and the effect, if any, of subsequent events thereon. We perceive no sound reason why all questions relating to the respective rights of the parties growing out of said \u201cContract and Deed of Separation\u201d and the subsequent relationships between Carey C. Tilley and defendant should not be before the court for decision when the facts are fully developed at trial.\nWith reference to plaintiff\u2019s contention that the defendant, in her \u201cfurther answer and counterclaim\u201d seeks to recover a monetary judgment only against the plaintiff in his capacity as executor, it is noted that John Douglas Tilley has elected to institute this action in his individual capacity and also in his capacity as executor. In his capacity as executor he is a fiduciary, and as such interested only in obtaining a declaration and determination of the respective rights of defendant and of himself as an individual in and to the estate of Carey C. Tilley. The questions for decision are the same as if John Douglas Tilley, Executor, were the plaintiff and John Douglas Tilley, individually, and Mary Ann Hall Tilley were defendants.\nWe do not consider now whether defendant\u2019s \u201cfurther answer and counterclaim\u201d is inconsistent with the position on which she bases her alleged right to dissent. We hold simply that defendant is entitled to have declared and determined herein her rights, if any, in respect of her asserted \u201cfurther answer and counterclaim.\u201d\nFor the reasons indicated, this Court reverses (1) the order striking the \u201cfurther answer and counterclaim\u201d from defendant\u2019s answer, and (2) the judgment on the pleadings.\nReversed.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Robert E. Lee and Schoch, Schoch & Schoch for plaintiff appellee.", "Smith, Moore, Smith, Schell & Hunter by James R. Turner for defendant appellant." ], "corrections": "", "head_matter": "JOHN DOUGLAS TILLEY, Individually and JOHN DOUGLAS TILLEY, Executor of the Estate of CAREY C. TILLEY, Deceased, v. MARY ANN HALL TILLEY.\n(Filed 14 December, 1966.)\n1. Pleadings \u00a7 30\u2014\nJudgments on the pleadings are not favored, and a motion for judgment on the pleadings admits for the purpose of the motion, the allegations of the adverse party and requires that such allegations be liberally construed.\n2. Husband and Wife \u00a7 12\u2014\nWhile a deed of separation containing a complete property settlement between the parties is not affected by a subsequent reconciliation and resumption of the marital relations by them, the parties may, upon the resumption of the marital relations, rescind the agreement, even by parol, and make a new agreement in connection with the reconciliation.\n3. Same; Wills \u00a7 60; Pleadings \u00a7 30\u2014 Allegations held to raise issue whether parties cancelled deed of separation by agreement after reconciliation.\nThis action was instituted by the executor for a judgment declaring that the widow was precluded from filing a dissent by a deed of separation embodied in a consent judgment under the terms of which the widow and testator agreed to live separate and apart and released all rights by reason of their marriage to any property then owned or thereafter acquired by the other, including any rights under the laws of distribution. The widow alleged in her answer that subsequent to the execution of the deed of separation the parties became reconciled, resumed cohabitation as husband and wife, and cancelled the contract and deed of separation. Held: Plaintiff is not entitled to a judgment on the pleadings, since the answer raises the question whether the deed of separation had been rescinded by the parties.\n4. Wills \u00a7 60; Pleadings \u00a7 8\u2014\nIn an action brought by an executor in his representative capacity and as an individual for a judgment declaring that the widow was precluded by a deed of separation from filing a dissent to the will, the widow may set up a counterclaim for sums allegedly due her under the terms of the deed of separation, since the widow is entitled to raise all questions relating to the respective rights of the parties growing out of the deed of separation.\n5. Wills \u00a7 71\u2014\nWhere an executor, a beneficiary under the will, brings an action in his representative capacity and as an individual against his testator\u2019s widow for judgment declaring the widow precluded from filing a dissent to the will, the executor in his representative capacity is a fiduciary and as such is interested only in obtaining a declaration and determination of the respective rights of the widow and of himself as individuals in and to the estate, and the action is the same as though the executor in his representative capacity was the plaintiff and, in his individual capacity, was a defendant with the widow.\nAppeal by defendant from Crissman, J., June 13, 1966 Civil Session of GuilfoRD, High Point Division.\nCivil action in which plaintiff, as sole legatee and as executor under the terms of a paper writing dated March 6, 1964, and probated December 28, 1964, as the last will and testament of Carey C. Tilley, seeks to have adjudged void and of no effect a purported dissent filed by defendant to said will.\nJudge Crissman, allowing plaintiff\u2019s motion therefor, entered judgment on the pleadings adjudging defendant\u2019s purported dissent void and of no effect.\nThe complaint incorporates attached exhibits, to wit, copies of (1) the consent judgment, (2) the contract and deed of separation, (3) the will, and (4) the dissent, referred to below. A demurrer to the complaint was overruled. Answering, defendant admitted the facts stated below; and defendant alleged first, second and third further answers and defenses and also a \u201cfurther answer and counterclaim.\u201d\nOn October 26, 1965, Judge Olive, allowing plaintiff\u2019s motion therefor, ordered (1) defendant\u2019s alleged first further answer and defense, and (2) defendant\u2019s \u201cfurther answer and counterclaim,\u201d stricken from the answer. Defendant excepted to this order. On this appeal, defendant brings forward her exception to the portion of Judge Olive\u2019s order striking her \u201cfurther answer and counterclaim.\u201d On May 19, 1966, plaintiff filed his motion for judgment on the pleadings. This motion came on for hearing before Judge Crissman at the above term on the complaint, the answer proper, and the second and third further answers and defenses.\nOn appeal, defendant assigns as error (1) the said judgment and (2) the portion of Judge Olive\u2019s order striking her \u201cfurther answer and counterclaim.\u201d\nRobert E. Lee and Schoch, Schoch & Schoch for plaintiff appellee.\nSmith, Moore, Smith, Schell & Hunter by James R. Turner for defendant appellant." }, "file_name": "0630-01", "first_page_order": 670, "last_page_order": 676 }