Matter of Estate of Adamee

SHARP, Chief Justice. It is well settled in our law that a separation agreement between husband and wife is terminated for every purpose insofar as it remains executory upon their resumption of the marital relation. Tilley v. Tilley, 268 N.C. 630, 151 S.E. 2d 592 (1966); Hutchins v. Hutchins, 260 N.C. 628, 133 S.E. 2d 459 (1963); Jones v. Lewis, 243 N.C. 259, 90 S.E. 2d 547 (1955); 2 Lee, Family Law, § 200, p. 418 (1963). As Justice Brogden noted in State v. Gossett, 203 N.C. 641, 643, 166 S.E. 754, 755 (1932), the heart of a separation agreement is the parties’ intention and agreement to live separate and apart forever, and when a husband and wife enter into a deed of separation the policy of the law is that they are to live separate. Therefore, they void the separation agreement if they re-establish a matrimonial home. The same public policy which will not permit spouses to continue to live together in the same home — holding themselves out to the public as husband and wife — to sue each other for an absolute divorce on the ground of separation or to base the period of separation required for a divorce on any time they live together, will also nullify a separation agreement if the parties resume marital cohabitation. Whether used in a separation agreement or a divorce statute, the words “live separate and apart” have the same meaning. The cessation of cohabitation which provides grounds for divorce and the resumption of cohabitation which will abrogate a separation agreement are defined in the same terms. Separation as grounds for a divorce “implies living apart for the entire period in such manner that those who come in contact with them may see that the husband and wife are not living together. For the purpose of obtaining a divorce under G.S. 50-5(4), or G.S. 50-6, separation may not be predicated *392 upon evidence which shows that during the period the parties have held themselves out as husband and wife living together, nor when the association between them has been of such character as to induce others who observe them to regard them as living together in the ordinary acceptation of that descriptive phrase. This was the holding in Dudley v. Dudley, 225 N.C. 83, in an opinion written for the Court by Justice Denny. Separation means cessation of cohabitation, and cohabitation means living together as man and wife, though not necessarily implying sexual relations. Cohabitation includes other marital responsibilities and duties.” Young v. Young, 225 N.C. 340, 344, 34 S.E. 2d 154, 157 (1945). In Dudley v. Dudley, 225 N.C. 83, 86, 33 S.E. 2d 489, 491 (1945), Justice Denny (later Chief Justice), said: “The overwhelming weight of authority as to what is meant by living ‘separate and apart,’ is in accord with the view expressed in 17 Am. Jur., sec. 162, p. 232 as follows: . . . ‘what the law makes a ground for divorce is the living separately and apart of the husband and wife continuously for a certain number of years. This separation implies something more than a discontinuance of sexual relations, whether the discontinuance is occasioned by the refusal of the wife to continue them or not. It implies the living apart for such period in such manner that those in the neighborhood may see that the husband and wife are not living together.’ (Citations omitted.) “Marriage is not a private affair, involving the contracting parties alone. Society has an interest in the marital status of its members, and when a husband and wife live in the same house and hold themselves out to the world as man and wife, a divorce will not be granted on the ground of separation, when the only evidence of such separation must, in the language of the Supreme Court of Louisiana (in the case of Hava v. Chavigny, 147 La. 331, 84 So. 892) ‘be sought behind the closed doors of the matrimonial domicile.’ Our statute contemplates the living separately and apart from each other, the complete cessation of cohabitation.” We hold that when separated spouses who have executed a separation agreement resume living together in the home which they occupied before the separation, they hold themselves out as man and wife “in the ordinary acceptation of the descriptive phrase.” Irrespective of whether they have resumed sexual *393 relations, in contemplation of law, their action amounts to a resumption of marital cohabitation which rescinded their separation agreement insofar as it had not been executed. Further, a subsequent separation will not revive the agreement. See Campbell v. Campbell, 234 N.C. 188, 66 S.E. 2d 672 (1951). All the evidence offered by appellees in support of their motion for summary judgment and by appellants in opposition to it, tends to show that after the execution of the separation agreement and consent judgment on 20 December 1973, Mrs. Adamee returned to the marital home which she and Adamee had occupied prior to the separation; that thereafter the commissioners named in the consent judgment to sell the couple’s joint property for division were instructed not to do so; that Adamee paid Mrs. Adamee’s attorney for representing her in the litigation between them; and that from January 1974 until Adamee’s death on 20 August 1974, he and Mrs. Adamee lived together continuously in their marital residence. Therefore, no issue arose for either judge or jury to decide as to their resumption of marital relations. As a matter of law they had done so. It follows that Judge Braswell correctly denied appellees’ motion for summary judgment but that he erred in refusing to affirm the clerk’s order that Mrs. Adamee is entitled to qualify as administratrix of the estate of Adamee and share in his estate as his widow without prejudice by reason of the separation agreement and consent judgment of 20 December 1973. It also follows that the Court of Appeals erred when it affirmed Judge Braswell’s judgment. In its consideration of this case the Court of Appeals began with the assumption that the appeal involved a disputed fact, that is, whether a reconciliation and resumption of marital relations had actually occurred between Adamee and Mrs. Adamee. We, however, have viewed and decided the case as presenting a question of law arising upon undisputed facts. Having posed the case as it did, the Court of Appeals recognized that our decision in In re Estate of Lowther, 271 N.C. 345, 156 S.E. 2d 693 (1967) would control the disposition of the appeal and require a reversal of Judge Braswell’s judgment unless subsequently enacted statutes had changed the law upon which Lowther was based. The Court of Appeals then held that the Judicial Department Act of 1965 had indeed rendered Lowther no longer authoritative for the proposition it decided. *394 This holding, with which we do not agree, requires us to examine and compare the applicable statutes as they existed before and after Lowther. In Lowther, upon petition of the children of the decedent, on 23 September 1966, the clerk of the superior court, acting under G.S. 28-32 (1966), removed the administratrix (whom he had appointed in 1964) upon his finding that she was not the widow of the decedent. Without challenging that finding by an exception, the administratrix gave notice of appeal to the presiding judge. After a. hearing, on 27 December 1966 the judge ordered the cause transferred to the civil issue docket for a determination of the issue by a jury. Upon petitioners’ appeal, this Court held (1) that when no exceptions are taken to the specific findings of fact upon which the clerk removes an administrator, an appeal presents only the question whether the facts found support the judgment; (2) that as to any finding of fact properly challenged by an exception, the judge will hear the matter de novo and either affirm, reverse, or modify, that finding; and (3) if the judge deems it advisable, he may submit the issue to a jury. Upon appeal we reversed the judgment of the superior court and directed the clerk’s order of removal reinstated. In the present case the Court of Appeals has held that the effect of the repeal of G.S. 2-1 (1969) and the enactment of G.S. 7A-240 and G.S. 7A-241 (1969) was “to take from the Clerk exclusive original jurisdiction of probate matters, to vest in the Clerk and the Superior Court concurrent jurisdiction of probate matters, and to provide for appeals from the Clerk directly to the judges of superior court, bypassing the district courts, on all such matters heard originally before the Clerks.” In re Adamee, 28 N.C. App. at 234, 221 S.E. 2d at 373-74. The conclusion was that, upon appeal, appellees were entitled to have the judge hear and determine all matters in controversy as if the case was originally before him; that the judge, “in the exercise of his inherent powers” had the right to submit the one issue involved to the jury. The Court directed, however, that “ [i] f, in this case, the Superior Court finds error in the order of the Clerk relative to the granting of letters of administration, it will not appoint a personal representative but must remand the cause to the Clerk for this purpose consistent with the decision of the Superior Court; the assignment of original authority of probate matters to the Clerk in G.S. *395 28A-2-1 is supported by, and not contravened by, G.S. 7A-241.” Id. at 236, 221 S.E. 2d at 375. Lowther originated in the second judicial district and was decided 20 September 1967. At that time the “Judicial Department Act of 1965,” ch. 310, N. C. Sess. Laws (1965), codified as N. C. Gen. Stats., Ch. 7A, was not applicable in the second judicial district. See G.S. 7A-131 and G.S. 7A-252 (1969). However, on 7 December 1970, N. C. Gen. Stats., Ch. 7A finally became applicable in every judicial district of the State. G.S. 7A-240 provides in pertinent part that except for “proceedings in probate and the administration of decedents’ estates,” the original civil jurisdiction vested in the trial divisions of the General Court of Justice is vested concurrently in each such division. This section excludes any jurisdiction of probate and estate matters in the district courts. By G.S. 7A-241 “ [e] xclusive original jurisdiction for the probate of wills and the administration of decedents’ estates is vested in the superior court division, and is exercised by the superior courts and by the clerks of superior court as ex officio judges of probate according to the practice and procedure provided by law.” (Emphasis added.) As we interpret G.S. 7A-241 it (1) re-emphasizes the fact that the district courts have no jurisdiction of probate matters, and (2) except in those instances where the clerk is disqualified to act, it vests probate jurisdiction in the superior courts to be exercised originally by the clerks as ex officio judges of probate in the manner specified in the applicable statutes. These statutes, to which reference will be made later, clearly give the clerk exclusive original probate jurisdiction. In such matters, appeals from the clerk “lie to the judge of superior court having jurisdiction from all orders and judgments of the clerk for review in all matter of law or legal inference in accordance with the procedure provided in Chapter 1 of the General Statutes.” G.S. 7A-251 (1969). At the time of its enactment, G.S. 2-1 (formerly N. C. Code, sec. 102 (1883)) “abolished the office of probate judge and transferred the duties which the Clerks had previously performed as judges of probate to them as clerks of the Superior Court.” Although this section abolished the office of probate judge eo nomine, “the special probate powers and duties of *396 the clerk continued distinct and separate from their general duties as clerk of the courts to which they belong.” In re Estate of Lowther, supra at 348, 156 S.E. 2d at 696. At the time of its repeal as of 1 October 1971, G.S. 2-1 had already been superseded by N. C. Gen. Stats. Ch. 7A. The title of the repealing act, N. C. Sess. Laws, Ch. 363, sec. 11 (1971), is self-explanatory: “An Act to Repeal Various Obsolete Sections of General Statutes Chapter 2 (Clerk of the Superior Court), and to Revise the Remaining Sections and Transfer them to Chapter 7A (The Judicial Department).” Just as the special probate powers and duties of the clerks continued after the enactment of G.S. 2-1 so did they continue after its repeal. Under G.S. 7A-241 the clerk of superior court, “as ex officio judges of probate,” continues to exercise probate jurisdiction “according to the practice and procedure provided by law”; and in doing so, he continues to act as “a judicial officer of the superior court division, and not as a separate court.” G.S. 7A-40 (1969). This is the view expressed by Professor Dickson Phillips in 1 McIntosh, North Carolina Practice and Procedure, § 196 (Supp. 1970) wherein he said: “Under the Judicial Department Act of 1965, creating and structuring the General Court of Justice, the Clerk of Superior Court retains his pre-existing judicial powers in matters of probate and administration, guardianship, special proceedings, and in matters of pleading and practice, as a judicial officer of the unified Court.” When G.S. 7A-241 was enacted in 1965 its reference to “the practice and procedure provided by law” was a reference to N. C. Gen. Stats. Ch. 28, which remained applicable to the estates of all decedents dying on or before 1 October 1975. After that date the reference in G.S. 7A-241 was to N. C. Gen. Stats. Ch. 28A. See N. C. Sess. Laws, Ch. 1329, sec. 5 (1973) as amended by N. C. Sess. Laws, Ch. 118 (1975). Prior to its repeal G.S. 28-1 (1966) gave a clerk of superior court jurisdiction within his county to take proof of wills and to grant letters testamentary and letters of administration in cases of intestacy where the decedent was domiciled in his county; a nonresident with assets in the county; a nonresident having assets in the State who died in the county; and a nonresident party to litigation pending in the county. G.S. *397 28-1 was carried forward in N. C. Gen. Stats., Ch. 28A as two sections, G.S. 28A-2-1 and G.S. 28A-3-1 (Cum. Supp. 1975). Section 28A-2-1 provides: “The clerk of superior court of each county, ex officio judge of probate, shall have jurisdiction of the administration, settlement, and distribution of estates of decedents including, but not limited to, the following: (1) probate of wills; (2) granting of letters testamentary and of administration, or other proper letters of authority for the administration of estates.” G.S. 28A-3-1 designates the proper county, the “venue for probate of a will and for all proceedings relating to the administration of the estate of a decedent.” Pertinent here is the comment of Professor Wiggins in the 1976 pocket supplement to his treatise on 1 Wills and Administion of Estates in North Carolina, § 115: “Article 2, sections 28A-2-1 through 28A-2-3 of Chapter 28, as did the former law, vests in the clerk of superior court exclusive jurisdiction of the probate of wills, administration, settlement and distribution of the decedents’ estates, the granting of letters, testamentary and of administration, or other letters of authority. Unlike the former law, the jurisdiction of the clerk is no longer limited by such considerations as where the decedent died, left property or was domiciled. To expedite the handling of the matters, the assistant clerk is given rather broad powers of jurisdiction.” Under G.S. 28-1 and G.S. 31-12 (1966), the former law, if the clerk had either a direct or an indirect beneficial interest in the probate of a will or the administration of an estate or trust, the law divested him of jurisdiction and vested jurisdiction in either the judge of superior court, or under certain circumstances, the clerk of superior court of any adjoining county. Section 28A-2-3 (Cum. Supp. 1974) provides that, if the clerk has an interest in an estate or trust under his jurisdiction, the senior resident superior court judge is vested with exclusive original jurisdiction of the estate or trust. See Wiggins and Myers, Jv/risdiction for Probate of Wills and Administration of Estates of Decedents, 11 Wake Forest L. Rev. 7 (1975). The right of interested persons to contest the appointment of a decedent’s personal representative and the procedure for doing so under the former law remains substantially unchanged under the present law. See G.S. 28-30, G.S. 28-32 (1966) and G.S. 28A-6-4 (Cum. Supp. 1976). *398 The Court of Appeals, after noting- that “G.S. 28A-2-1 in substance vests in the Clerk ‘jurisdiction’ of the named probate matters without vesting concurrent jurisdiction in the superior court,” added, “But we find that the jurisdiction statutes in Chapter 7A are controlling”; that G.S. 28A-2-1 assigns original authority to the Clerk but “was not intended to change the vesting of concurrent jurisdiction in the Clerk and the Superior Court under G.S. 7A-241.” In re Adamee, supra at 235, 221 S.E. 2d at 374. The Court of Appeals has misconstrued G.S. 7A-241. This section does not say that concurrent jurisdiction in probate matters is vested in the clerk and the judge of the superior court. It says that probate jurisdiction is vested in the superior court division to be exercised by the superior court and the clerk according to the practice and procedure provided by law. The law, that is, the statutes specifying this practice and procedure, have allocated the jurisdiction between the clerk and the judge. By G.S. 28A-2-1 the clerk is given exclusive original jurisdiction of “the administration, settlement and distribution of estates of decedents” except in cases where the clerk is disqualified to act. G.S. 28A-2-3. When the clerk is disqualified to exercise his jurisdiction the judge has equal authority to perform the clerk’s probate duties and, in that sense, he exercises concurrent jurisdiction of probate matters. In all other instances, however, the judge’s probate jurisdiction is, in effect, that of an appellate court. G.S. 7A-251 provides for appeals from the clerk: “In all matters properly cognizable in the superior court division which are heard originally before the clerk of superior court, appeals lie to the judge of superior court having jurisdiction from all orders and judgments of the clerk for review in all matters of law or legal inference in accordance with the procedure provided in Chapter 1 of the General Statutes.” The Court of Appeals’ directive to the superior court— that in the event it found error in the clerk’s ruling with reference to Mrs. Adamee’s right to administer and to share in the estate of her husband, it would not appoint a personal representative, “but must remand the case to the clerk for that purpose” — appears to be inconsistent with its “finding” that the clerk and the superior court have concurrent jurisdiction in probate matters. “Courts of concurrent j urisdiction are courts of equal dignity as to the matters concurrently cognizable, neither *399 having supervisory power over process from the other, and . . . the one first exercising such jurisdiction acquires control to the exclusion of the other.” 21 C.J.S. Courts § 488 (1940). Finally, we note that G.S. 7A-251, which provides for appeals from the clerk to the judge, directs that they be taken in accordance with the procedure provided in Chapter 1 of the General Statutes. The applicable statutes were in effect at the time of the decision in In re Estate of Lowther and are discussed in the opinion in that case. These statutes are still in effect. For the reasons stated, the decision of the Court of Appeals affirming the judgment of the superior court is reversed. The Court of Appeals will remand the cause to the superior court with instructions that it affirm the order of the clerk. Reversed and remanded.