majority"> 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.

*93 There 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.

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